THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


' 


REPORTS 


CASES 

ARGUED   AND    ADJUDGED 


IN    THE 


SUPREME  COURT  OF  PENNSYLVANIA. 


BY 

WILLIAM  RAWLE,  JR.,  CHARLES  B.  PENROSE 
AND  FREDERICK  WATTS, 

COUNSELLORS   AT    LAW. 


VOL.    I. 


THIRD  EDITION,  REVISED  AND  CORRECTED. 
BY  I.  TYSON  MORRIS,  ESQ. 


PHILADELPHIA: 

KAY    &    BROTHER, 
LAW  BOOKSELLERS,  PUBLISHERS  AND  IMPORTERS, 

1880. 


Kf 
45 


Eastern  District  of  Pennsylvania,  to  wit  : 

BE  IT  REMEMBERED,  That  on  the  twenty-ninth  day  of  May,  in  the 
fifty-fourth  year  of  the  independence  of  the  United  States  of  America,  A.  1).  1830, 
William  Rawle,  Jun.,  Charles  B.  Penrose,  and  Frederick  Watts,  of  the  said  district, 
have  deposited  in  this  office  the  title  of  a  book,  the  right  whereof  they  claim  as  authors, 
in  the  words  following,  to  wit  : 

"  Reports  of  Cases  adjudged  in  the  Supreme  Court  of  Pennsylvania.  By  Wil- 
liam Rawle,  Jun.,  Charles  B.  Penrose,  and  Frederick  Watts,  Counsellors  at  Law. 
Vol.  I." 

In  conformity  to  the  Act  of  the  Congress  of  the  United  States,  entitled  "  An  Act  for 
the  encouragement  of  Learning,  by  securing  the  copies  of  Maps,  Charts  and  Books 
to  the  Authors  and  Proprietors  of  such  Copies,  during  the  times  therein  mentioned  ;" 
and  also  to  the  Ac.t  entitled  "  An  Act  supplementary  to  an  Act  entitled  An  Act  for  the 
encouragement  of  Learning,  by  securing  the  Copies  of  Maps,  Charts  and  Books,  to 
the  Authors  and  Proprietors  of  such  Copies  during  the  times  therein  mentioned,  and 
extending  die  benefits  thereof  to  the  arts  of  Designing,  Engraving  and  Etching 
Historical  and  other  prints." 

D.  CALDWELL, 

Clerk  of  the  Eastern  District  of  Pennsylvania. 


Entered,  according  to  Acf  of  Congress,  in  the  year  1880, 

BY  KAY  A  BROTHER, 
In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


Itinter. 


JUDGES 


SUPREME  COURT  OF  PENNSYLVANIA, 

DURING  THE  PERIOD  OF  THESE  REPORTS. 


JOHN  BANNISTER  GIBSON,    . 
MOLTON  C.  ROGERS,    .... 
CHARLES  HUSTON,   .... 
FREDERICK  SMITH,      . 

JOHN  Ross  (appointed  the  16th  of  April 
1830,  in  the  place  of  JOHN  TOD,  Esq., 
deceased. 


Chief  Justice. 


>  Justices. 


SAMUEL  DOUGLAS,  Esq.,  Attorney-General  (appointed   Febru- 
ary 1830. 


TABLE   OF   CASES. 


PACK 

Aaron,  McGirr  v.         .  .49 

Adams's  Appeal,          .  .  447 

Addleman  v.  Masterson,  .  451 

Allen,  Irwin  v.    .         .  .  444 

Aughinbaugh,  Mulliken  v.  .  117 

Baily  v.  Snyder,           .  .  126 

Baldwin,  Stewart  v.     .  .  461 

Bank  of  Penn'a  v.  Jacobs,  .  161 

Bast,  Heilner  v.            .  .  267 

Beashorc,  Wcngcrt  v.  .  232 

Beatty,  Evans  v.           .  .  489 

Beitler  v.  Zeigler          .  .  135 

Bekey,  Welsh  v.          .  .  57 

Benner,  Hall  v.  .         .  .  402 

Bctz's  Appeal,     .         .  .  271 

Bctz  v.  Hccbncr,          .  .  280 

Bishop,  Lemon  v.         .  .  485 

Boies,  Harvey  v.          .  .12 

Bossier,  Demi  v.           .  .  224 

Bower,  Sensor  v.          .  .  450 

Bowman  v.  Ilerr,         .  .  282 

Brackbill.  Johnston  v  .  364 

Brady  v.  Colhoun         .  .  140 

Brown,  Frantz  v.          .  .  257 

Brown,  Ilonniter  v.      .  .  4S~ 

Bryan  v.  McCulloch,  .  .  421 

Bull,  II olden  v.  .         .  .  460 

Burns  v.  Huntingdon  Bank,  395 

Callan,  Elliott  ».  24 

Carlisle  u.  Stitler,  .  6 


Centre  and  Kishacoquillas 
Turnpike  Road  Co.,  Mc- 
Conachy  v.  . 

Chambers  v.  Mifflin,     .         . 

Chess  v.  Chess,    .         . 

Chew  v.  Mathers,          .         . 

Clippinger  v.  Miller,    .         . 

Cobean  v.  Thompson,  . 

Colhoun,  Brady  v.        .         . 

Commonwealth  v.  Dewart,    . 

Commonwealth  v.  Farrelly, 

Commonwealth,    Finney's 
Adna'r  v. 

Commonwealth  v.  Fisher,     . 

Commonwealth  v.  Henderson, 

Commonwealth  v.  Kreamcr, 

Commonwealth,  Porter  v.     . 

Commonwealth  v.  llichter,  . 

Commonwealth,  Russell  v.    . 

Commonwealth,  Snyder  v.    . 

Cornman,  Gallatin  v.   .         . 

Cox  v.  Norton,     .          .         . 

Craighead,  Searight  v.          . 

Crary,  Ingham  v.          .          • 

Crosby  v.  Masscy,   .     .          . 

Darrah  r.  Warnock,  .  . 
Dean  v.  Patton,  .  .  . 
Decker  v.  Eisenhaucr,  . 

Demi  v.  Bossier,  .         . 

Pevinney  v.  Reeder,    . 

(v) 


426 
74 
32 

474 
64 
93 

140 

462 
52 

240 
462 
401 
462 
252 
462 
82 
94 
115 
412 
U>f> 
3S9 
2l?9 

21 
437 
476 
224 

399 


VI 


TABLE  OF  CASES. 


PAGE 

PAGE 

Dewart,  Commonwealth  v.    . 

462 

Honniter  v.  Brown, 

487 

Diemer  v.  Sechrist, 

419 

Huntingdon  Bank,  Burns  v. 

395 

Dietrich  v.  Dietrich     • 

306 

Huntingdon  Bank,  Gro  v.     . 

425 

Dixon,  Smiley  v. 

439 

Henderson,  Commonwealth  v. 

401 

Douer  v.  Stauffer, 

198 

Doughman  v.  McKennan,     . 

417 

Immel  v.  Stoever 
Ingham  v.  Crary, 

262 

389 

Eiseuhauer,  Decker  v. 

476 

Irwin  v.  Allen,    . 

444 

Elliott  v.  Callan, 

24 

Elliott  v.  Sanderson,    . 

74 

Jacobs,  Bank  of  Penna.  v.  . 

161 

Engle  v.  Nelson, 

442 

Jacobs,  Himes  v. 

152 

Evans  v.  Beatty, 

489 

Johnston  v.  Brackbill, 

364 

Evans,  Sidwell  v. 

383 

Johnston  v.  Matson,    . 

371 

Johnston  v.  Perkins,   . 

23 

Farrelly,  Commonwealth  v.  . 

52 

Johnston,  Smith  v. 

471 

Feather's  Appeal, 

322 

Jonestown  Road, 

243 

Finney's    Adm.  v.  Common- 

wealth,   .... 

240 

Keller  v.  Leib, 

220 

Fisher,  Commonwealth  v. 

462 

King  v.  King, 

15 

Porringer,  Leihhart  v. 

492 

King  v.  Morrison, 

188 

Frantz  v.  Brown, 

257 

Kline,  Moore  v.  . 

129 

Kiinuiel.  Konigmacher  v. 

207 

Gable  v.  Hain,    . 

264 

'                      O 

Konigmacher  v.  Kimmel, 

207 

Gallatin  v.  Cornman,    . 

115 

O 

Kreamer,  Commonwealth  v. 

462 

Gardner  v.  Lefevre, 

73 

Gratz  v.  Phillips, 

333 

Laughlin  v.  Laughlin,  . 

114 

Gro  v.  Huntingdon  Bank,    . 

425 

Lefevre,  Gardner  v. 

73 

Leib,  Keller  v.     . 

220 

Hahn  v.  llhoads, 

484 

Leinhart  v.  Forringer, 

492 

Hain,  Gable  v.     . 

264 

Lemon  v.  Bishop, 

485 

Hall  v.  Benner,  . 

402 

Lemon  v.  Thompson,    . 

482 

Hart  v.  Withers, 

285 

Lewis,  Purnroy  v. 

14 

Harvey  v.  Boies, 

12 

Little  v.  Hodge, 

501 

Hcebner,  B<:tz  v. 

280 

Hege  v.  Hcgc,     . 

83 

McBridc  v.  Hoey, 

54 

Heilncr  v.  Bast,  . 

267 

McBride,  Moore  v. 

148 

Hcizu,  Ilichwine  v. 

373 

McConachy  v.  Turnpike  Co., 

426 

Herr,  Bowman  v. 

282 

McCoy  v.  Turk, 

499 

Himes  v.  Jacobs, 

152 

McCulloch,  Bryan  v.   . 

421 

Hodge,  Little  r. 

501 

McCulloch  v.  Sample, 

422 

Hoey,  McBridc  v. 

54 

McGirr  v.  Aaron, 

49 

Holdcn  v.  Bull,  . 

460 

McGrew  v.  McLanahan, 

44 

TABLE  OF  CASES. 


vn 


I'A'.I. 

I>A(;K 

McKee's  Case,     .         .  -'  . 

449 

Senser  v.  Bower, 

450 

McKennan  v.  Doughman,     . 

417 

Shewall,  Meredith  v.    . 

495 

McKim  v.  Somers, 

297 

Shuman  v.  Pfoutz, 

61 

McLanahan  v.  Lanahan, 

96 

Sidwell  v.  Evans, 

383 

McLanahan,  McGrew  v. 

44 

Slaymaker  v.  Wilson,  . 

2ir, 

Massey,  Crosby  v. 

229 

Smay  v.  Smith, 

1 

Masterson,  Addleman  v. 

451 

Smiley  v.  Dixon, 

439 

Mathers,  Chew's  Ex'rs  v.     . 

474 

Smith  v.  Johnston 

471 

Matson,  Johnson  v. 

371 

Smith,  Smay  v. 

1 

Meredith  v.  Shewull,    . 

495 

Snyder,  Baily  v. 

126 

Mifflin,  Chambers  v.     . 

74 

Snyder  v.  Commonwealth,    . 

94 

Miller,  Clippinger  v.    . 

64 

Snyder  v.  Zimmerman, 

293 

Mitchell,  Williamson  v. 

9 

Somers,  McKim  v. 

297 

Moore  v.  Kline, 

129 

Stauffer,  Doner  v. 

198 

Moore  v.  McBride, 

148 

Steinbridge's  Appeal,  . 

4sl 

Morris,  Willard  v. 

480 

Stewart  v.  Baldwin, 

4iil 

Morrison,  King  v. 

188 

Stitler,  Carlisle  v. 

G 

Mulliken  v.  Aughinbaugh,  . 

117 

Stoever,  Immel  v. 

2G2 

Nelson,  Engle  v. 

442 

Tate,  Iloyer  v.               .         . 

227 

Norton,  Cox  v. 

412 

Thompson,   Cobea  v.  . 

93 

Thompson,  Lemon  v.   . 

482 

Patton,  Dean  v. 

437 

Turk,  McCoy  v. 

499 

Perkins,  Johnston  v.    . 

23 

Turnpike,  McConachy  v. 

426 

Pfoutz,  Shuman  v. 

61 

Tyson  v.  Pollock 

375 

Phillips,  Gratz  v. 

333 

Pollock,  Tyson  v. 

375 

Ulrich  v.  Voneida, 

245 

Porter  v.  Commonwealth, 

252 

Voneida,  Ulrich  v. 

245 

Pumroy  v.  Lewis, 

14 

Warnock,  Darrah  v.     . 

21 

Eeeder,  Dcvinney  v.    . 

399 

Weeks,  White  v. 

486 

llhoads,  Hahn  v. 

484 

Welsh  v.  Bekey, 

57 

Koyer  v.  Tate,     . 

2'')7 

Wengert  v.  Beashore,  . 

232 

Kichter,  Commonwealth  v.  . 

462 

White  v.  Weeks, 

486 

llichwine  v.  Heirn, 

373 

Willard  v.  Morris. 

480 

Russell  v.  Commonwealth,    . 

82 

Williamson  v.  Mitchell, 

9 

Wilson.  Slavmaker  r. 

2  It! 

Sample,  McCulloch  v. 

422 

J 

Withers,  Hart  v. 

285 

Sanderson,  Elliott  r.     . 

74 

Searight  v.  Craighead, 

135 

Xiegler,  Beitler  r. 

ir>5 

Sechrist  v.  Diemer, 

419 

Zimmerman,  Snyder  v. 

293 

.                -  1898  V 
W X- 

CASES  •51caqF*-' 


IN 


THE   SUPREME   COURT 

Of 

PENNSYLVANIA. 


WESTERN  DISTRICT,  SEPTEMBER  TERM  1829. 


Smay  against  Smith  et  al. 

IN    ERROR. 

When  it  can  be  proved  or  is  admitted  that  a  man  acted  as  an  assistant-sur- 
veyor, it  is  not  requisite  to  show  a  special  authority. 

ijeneral  reputation  that  a  person  was  employed  as  such,  or  proof  that 
many  drafts  or  field  notes  remaining  in  the  surveyor's  office  are  in  his  hand- 
writing, are  evidence  that  he  was  an  assistant. 

The  return  by  a  deputy-surveyor  of  a  survey  made  by  another,  is  a  ratifica- 
tion of  it,  and  it  is  immaterial  whether  there  was  a  precedent  authority  to 
make  it  or  not. 

An  ejectment  may,  in  some  cases,  be  supported  on  a  warrant  without  a 
survey. 

In  ejectment  to  recover  a  tract  of  land,  where  reference  is  made  in  a  deposi- 
tion to  lines  run  and  surveys  made,  and  a  draft  is  annexed,  which  does 
not  embrace  all  those  lines  and  surveys,  but  only  those  of  the  tract  in  dispute, 
it  will  be  sufficient,  if  tho  defendant  was  present  to  cross-examine,  and  did 
not  ask  for  any  other  or  further  draft. 

ERROR  to  the  Court  of  Common  Picas  of  Cambria  county. 

Tliis  was  an  ejectment  brought  in  the  court  below  by  the  execu- 
tors of  Dr.  Smith  to  recover  from  John  Smay,  the  defendant,  part 
of  a  tract  of  two  hundred  acres  of  land  in  Cambria  county.  To 
support  their  claim  the  plaintiffs  gave  in  evidence  :  1st.  A  warrant 
to  William  Smith,  D.  I).,  dated  7th  April  1792,  for  one  hundred 
acres  near  the  thirteenth  mile  tree,  on  the  road  from  Frankstown,  in- 
cluding the  Dollar  Camp.  2d.  A  warrant  to  Rebecca  Blodget  (a 
daughter  of  Dr.  Smith),  dated  21st  December  1792,  for  three  hun- 
dred acres  adjoining  lands  warranted  to  William  Smith,  D.D..  at 
a  place  called  the  Dollar  Camp. 

The  plaintiffs  then  offered  the  deposition  of  Thomas  Yu-knn-. 
•which  went  to  show,  that  in  1794  he  went  and  saw  the  outlines  of 
the  survey,  as  made  by  William  O'Keefe,  deputy-surveyor,  in  1SOS. 
and  many  other  surveys  for  Dr.  Smith,  as  run  by  P.  Cassidy. 
That  Vickroy  himself,  at  the  instance  of  Dr.  Smith,  at  different 
times  run  the  division  lines,  and  particularly  run  and  marked  all  the 

1  P.  &  W.— 1  (1) 


2  SUPREME  COURT  [Pittsburgh 

[Smay  r.  Smith.] 

lines  of  the  said  survey  of  O'Keefe  (a  draft  of  which,  showing  the 
courses  and  distances  and  corners  he  annexed  to  his  deposition) ; 
that  having  completed  all  the.  work,  lie,  in  1808,  gave  his  field  notes 
and  draft  to  Mr.  O'Keefe,  who  returned  the  survey  for  Dr.  Smith. 
That  the  said  survey  included  the  thirteenth  mile  tree  on  a  road 
from  Frankstown  to  Conemaugh,  and  the  Dollar  Camp,  a  place  so 
called,  and  well  known. 

A  cross-examination  of  the  deponent  was  attached  to  the  deposi- 
tion. The  defendant  objected  to  its  admission.  That  it  was  not 
proved  that  P.  Cassidy  was  an  assistant  of  G.  Woods,  the  deputy- 
surveyor.  That  it  was  not  proved  that  Thomas  Yickroy  was  an 
assistant  of  G.  Woods.  That  he  was  not  an  assistant  of  O'Keefe. 
That  the  land  was  not  in  G.  Woods's  district.  That  Vickroy  did 
not  return  with  his  deposition  a  draft  of  all  the  work  done  by  P. 
Cassidy  and  himself.  And  that  if  Vickroy  had  no  authority  to 
make  the  survey  it  was  useless  to  prove  the  existence  of  the  lines  on 
the  ground.  Which  objections  were  overruled  by  the  court  and  a 
bill  of  exceptions  sealed. 

Other  wituesses  were  then  produced  on  the  part  of  plaintiffs,  who 
proved  that  they  had  examined  the  lines  on  the  ground,  and  found 
the  survey  accurately  made,  and  the  defendant  living  within  it. 

The  plaintiff'  then  offered  a  certified  copy  of  the  survey  by  Wil- 
liam O'Keefe.  To  which  it  was  objected,  that  the  certificate  at  the 
foot  of  the  draft  returned,  stated  the  above  to  be  a  copy  of  a  survey 
made  in  17U-4,  by  G.  Woods,  <S;c.,  and  examined  and  rcsurveyed  in 
1808,  by  William  O'Keefe,  deputy-surveyor — and  that  part  of  the 
certificate  which  states  what  G.  Woods  did,  is  no  evidence  of  the 
fact;  and  in  support  of  their  objection,  produced  a  witness  who 
swore,  that  he  had  seen  and  conversed  with  William  O'Keefe,  on 
the  morning  of  the  trial,  and  that  he  lived  within  a  mile  and  a 
quarter  of  the  town.  Whereupon  the  court  rejected  the  draft.  The 
plaintiffs,  after  giving  in  evidence  the  will  of  Dr.  Smith,  dated  10th 
July  1802,  rested. 

The  defendant  produced  no  other  testimony  than  to  show  that  the 
"Dollar  Camp"  was  without  the  lines  claimed  by  the  plaintiff's,  and 
relied  on  the  defectiveness  of  the  defendant's  title  to  prevent  a  re- 
covery. 

The  opinion  of  the  court  was  reduced  to  writing,  and  filed  of 
record. 

White.,  for  plaintiff  in  error,  contended:  1st.  That  the  deposi- 
tion of  Vickroy  was  erroneously  admitted,  because  it  referred  to  a 
draft  which  had  been  in  his  possession,  and  did  not  account  for  the 
loss  of  it ;  and  although  he  did  swear  the  copy  annexed  was  true, 
that  that  was  not  sufficient :  Lessee  of  Packer  ?'.  Gonsalus,  1  S.  & 
II.  526 ;  13  Id.  133.  2d.  That  the  warrant  of  Dr.  Smith  is  but 
descriptive  to  a  common  intent,  and  the  title  would  only  attach  from 
the  actual  survey,  but  if  it  were  descriptive,  the  holder  is  postponed 


Sept.  1829.]  OF  PENNSYLVANIA.  3 

[Sruay  v.  Smith.] 

by  laches  :  Hunter's  Lessee  v.  Meason  et  al.,  4  Yeates  108  ;  3  Id. 
25 ;  7  S.  &  R.  185,  191 ;  4  Binn.  58 ;  3  Yeates  283 ;  2  Id.  148. 
3d.  As  the  plaintiffs  have  no  official  survey  they  cannot  recover  : 
2  Yeates  148 ;  3  Binn.  103.  4th.  That  the  defendant  could  not 
be  affected  with  notice  unless  there  was  an  official  survey.  An  illegal 
survey  is  not  notice:  7  S.  &  R.  191;  2  Binn.  105-7;  Smith's 
Ex'r  v.  Keehan,  MS.  . 

Smith,  for  defendant  in  error. — The  warrants  were  descriptive, 
as  appears  by  the  finding  of  the  jury — they  had  both  been  placed  in 
the  hands  of  P.  Cassidy,  an  assistant  of  the  deputy-surveyor;  Thomas 
Vickroy  also  had  run  lines,  and  made  a  draft,  which  he  gave  to 
O'Keefe,  the  deputy-surveyor,  who  returned  the  survey  into  the 
office. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — The  executors  of  Dr.  Smith,  who  were  plaintiffs  in 
the  Common  Pleas,  claimed  the  land  in  question  on  two  warrants, 
unsurveyed  and  returned  into  the  office  of  the  surveyor-general. 
One  in  the  name  of  Dr.  Smith,  dated  the  7th  April  1792,  for  one 
hundred  acres  of  land  near  the  thirteenth  mile  tree,  on  the  road 
from  Frankstown,  including  the  "Dollar  Camp;"  another  in  the 
name  of  Rebecca  Blodget  (a  daughter  of  Dr.  Smith),  dated  the  21st 
of  December  1792,  for  three  hundred  acres,  adjoining  land  war- 
ranted to  William  Smith,  D.  D.,at  a  place  called  the  "Dollar  Camp." 
After  giving  in  evidence  these  two  warrants,  the  plaintiff  offered 
the  deposiflon  of  Thomas  Vickroy,  which  was  received  and  excep- 
tion taken ;  then  the  testimony  of  S.  Lloyd,  which  was  admitted ; 
and  then  the  return  of  the  survey  by  William  O'Keefe,  deputy-sur- 
veyor, under  seal  of  office,  which  was  rejected,  because,  as  was 
agreed  here,  the  certificate  at  the  foot  of  the  draft  returned,  stated 
the  above  to  be  a  copy  of  the  survey,  made  in  1794,  by  G.  Woods, 
&c.,  and  examined  and  surveyed  by  William  O'Keefe,  deputy-sur- 
veyor, in  1808,  and  that  the  part  of  the  certificate  which  states 
what  Gr.  Woods  had  done,  was  no  evidence  of  the  fact  stated.  Be 
it  so  ;  it  was  still  evidence  of  what  was  done  by  the  deputy-surveyor 
who  returned  it,  and  should  have  been  received  as  evidence  of  a 
survey  in  1809  ;  this  being  rejected,  the  defendant  gave  no  evi- 
dence ;  it  had  been  proved  he  was  in  possession,  and  the  court 
charged  the  jury  that  they  might  find  for  the  plaintiff;  they  did  so, 
and  Smay  has  brought  his  writ  of  error. 

There  is  in  the  objections  an  ovcr-aeutcness,  not  usual  in  our 
courts,  and  which  I  shall  proceed  to  state.  Viekroy's  deposition 
proved  that  in  1794  he  went  and  saw  the  outlines  of  the  survey  in 
question,  and  many  other  surveys  for  Dr.  Smith,  as  run  by  P.  Cas- 
sidy ;  that  Vickroy  himself,  at  the  instance  of  Dr.  Smith,  at  differ- 
ent times  run  the  division  lines,  and  particularly  run  and  marked 
all  the  lines  of  the  surveys  in  question  (a  draft  of  which,  showing  the 


4  SUPREME  COURT  [Pittsburgh 

[Sinay  v.  Smith.] 

courses,  distances  and  corners,  he  annexed  to  his  deposition) ;  that, 
having  completed  all  the  work,  he  in  1808  gave  his  field-notes  and 
drafts  to  Mr.  O'Keefe,  who  returned  the  surveys.  Lloyd  and  others 
proved  that  shortly  before  the  trial  they  examined  the  lines  on  the 
ground,  and  found  the  survey  accurately  made,  and  the  defendant 
living  within  it.  Vickroy  and  others  proved  the  thirteenth  mile 
tree  on  a  road  from  Frankstown  to  Conemaugh,  and  the  "  Dollar 
Camp,"  a  place  so  called  and  well  known  to  be  included  in  the 
plaintiff's  survey.  There  was  a  cross-examination  at  the  time  of 
taking  the  deposition.  The  objections  to  it  were,  that  it  was  not 
proved  that  P.  Cassidy  was  an  assistant  of  G.  Woods ;  that  it  was 
not  proved  that  Thomas  Vickroy,  the  witness,  was  an  assistant  of 
G.  Woods ;  that  he  was  not  an  assistant  of  O'Keefe's ;  that  the 
land  was  not  in  O'Keefe's  district,  and  that  Vickroy  did  not  return 
with  his  deposition  a  draft  of  all  the  work  done  by  P.  Cassidy  and 
himself.  And  next,  that  if  Vickroy  "had  no  authority  to  make  the 
survey,  it  was  useless  to  prove  the  existence  of  the  lines  on  the 
ground,  by  Lloyd  and  others. 

There  is  a  rule  of  evidence  that  a  party  shall  produce  the  best 
evidence  which  the  case  admits  of.  In  practice,  however,  there  are 
very  many  exceptions.  Where  a  deed  is  acknowledged,  or  a  depo- 
sition taken  before  a  man  who  states  himself  to  be  a  justice  of  the 
peace,  the  deed  is  recorded  or  read  in  court,  and  so  is  a  deposition, 
though  we  have  not  the  best  evidence,  nor  any  evidence  that  the 
man  who  certified  it  was  a  justice  of  the  peace.  Copies  of  the 
returns  of  surveys  under  seal  for  the  surveyor-general's  office,  are, 
and  have  been  received,  and  the  commission  of  the  deputy-surveyor 
•who  made  them  is  not  asked  for,  any  more  than  the  justices  of  the 
peace  above  stated.  The  boundaries  of  a  surveyor's  district  are 
also  taken  from  report,  as  well  as  the  fact  of  his  being  a  deputy- 
surveyor  ;  if  cither  is  contested,  notice  is  given  before  the  trial,  or 
the  party  contesting  the  authority  cornes  with  a  copy  of  the  com- 
mission to  some  other  person,  and  with  proof  that  the  land  was 
actually  out  of  the  district.  So  the  commission  of  a  sheriff,  or 
proof  that  the  writ  was  executed  within  his  county  is  not  required 
— if  denied,  the  truth  may  be  inquired  into.  The  sheriff  and  dep- 
uty-surveyor generally  have  assistants,  and  the  authority  to  the 
deputy-sheriff,  or  assistant  to  the  surveyor,  is  scarcely  ever  in 
writing ;  I  will  say  never  where  the  person  is  generally  employed. 
If  a  man  who  has  never  been  engaged  to  make  a  survey  for  the 
officer,  is  wanted  to  make  a  single  survey,  he  may  be  requested  in 
writing.  In  some  instances,  there  are  several  persons  who  act  as 
assistants  to  the  deputy-surveyor,  and  when  they  continue  to  act  in 
that  capacity  for  a  long  time,  this  is  as  generally  known  as  it  is 
known  who  is  the  deputy-surveyor  of  the  county. 

Where  it  can  be  proved  or  is  admitted  that  a  man  acted  as  an 
assistant-surveyor,  and  the  survey  is  returned,  as  was  the  case  here, 
it  never  was  required  to  prove  a  special  authority  to  do  that  act. 


Sept.  1829.]  OF  PENNSYLVANIA.  5 

[Smay  v.  Smith.] 

General  reputation  that  a  man  acted  as  an  assistant  to  a  former 
deputy-surveyor,  or  proof  that  many  drafts  or  field  notes  remain- 
ing in  the  office  are  in  the  handwriting  of  a  particular  man,  are 
evidence  that  he  was  an  assistant.  In  7  S.  &  R.  817,  the  law  18 
not  laid  down,  but  rather  what  has  been  the  usage  on  this  subject ; 
and  see  G  S.  &  R.  137.  Perhaps  every  man  in  that  court-house 
knew  that  G.  Woods  was  the  deputy-surveyor  of  Bedford  county, 
in  1792,  and  that  the  present  county  of  Cambria  was  a  part  of  that 
county  in  the  same  year.  It  was  as  well  known  thirty  years  ago 
that  Cassidy  and  Vickroy  had  been  assistants  of  G.  Woods,  as  that 
G.  Woods  had  been  deputy-surveyor  of  Bedford  county.  If  Vick- 
roy had  said  in  his  deposition  that  he  and  Cassidy  had  been  assist- 
ants to  G.  Woods,  it  would  have  been  legal  evidence  of  it;  so,  if 
any  person  in  the  court  had  proved  that  they  were  known  and  re- 
puted as  such.  Palpably  the  deposition  was  taken  without  a  ques- 
tion on  this  subject,  because  it  was  supposed  to  be  too  well  known 
to  be  denied.  If  it  had  been  necessary  in  the  cause,  I  would  have 
directed  the  jury  that  they  might  fairly  infer  it  from  the  testimony 
given.  Vickroy  also  proved  that  he  gave  to  O'Keefe  the  drafts,  &c., 
from  which  the  return  was  made.  Now  the  fact  that  O'Keefe  re- 
turned a  survey  made  by  Vickroy,  or  any  other  person,  was  a  rat- 
ification of  it,  and  after  this,  it  was  totally  immaterial  whether  there 
was  a  precedent  authority  to  make  it  or  not.  There  was,  then,  un- 
less contradicted,  and  if  believed,  evidence  of  the  survey  being 
legally  made. 

It  would  then  seem  unnecessary  to  discuss  the  point  whether  in 
any  case,  or  in  this  case,  an  ejectment  can  be  supported  on  a  war- 
rant without  a  survey.  Clearly  there  are  cases  where  a  man  may 
bring  an  ejectment  on  a  warrant  without  any  survey  of  the  same 
land,  each  a  warrant  of  his  own  ;  the  deputy-surveyor  makes  the 
survey  for  qne,  the  other  enters  a  caveat,  the  board  of  property 
decides,  as  the  deputy-surveyor  did  ;  the  other  is  not  without  his 
redress,  he  may  bring  his  ejectment,  and  recover  the  whole  or  a 
part  of  the  land  which  is  in  dispute  ;  the  fifth  section  of  the  Limi- 
tation Act  of  the  2(5th  of  March  1785,  in  fact,  supposes  an  ejectment 
on  a  warrant  on  which  no  survey  has  been  made.  There  was  a 
radical  mistake  in  rejecting  the  return  of  survey  by  O'Keefe,  but 
this  was  in  favor  of  the  party  who  has  taken  the  writ  of  error  ;  he, 
however,  says  that  prevented  him  from  going  into  a  full  defence ; 
be  it  so,  we  must  take  it  as  it  appears  to  us.  There  was  another 
objection,  namely,  that  Vickroy  in  his  deposition  spoke  of  lines  run 
and  surveys  made  by  Cassidy  and  himself,  and  did  not  annex  a 
draft  of  these  lines  or  surveys,  but  he  annexed  a  draft  of  the  tract 
in  question.  It  did  not  appear,  nor  is  it  alleged  that  any  other  part 
of  the  work  was  material — besides  having  closc'd  his  testimony,  ami 
annexed  his  draft,  the  defendant  cross-examined  the  deponent  and 
did  not  ask  for  any  other  or  further  draft. 

Judgment  affirmed. 


SUPREME  COURT  [Pittoburgh 


Carlisle  et  al.  against  Stitler. 

IN    ERROR. 

An  entry  is  not  necessary  in  any  case  in  Pennsylvania,  in  order  to  enable 
the  person  who  has  title  to  recover  the  possession  of  lands. 

Every  owner  is  in  possession  until  some  person  actually  enters  on  him  under 
an  adverse  claim,  and  the  Statute  of  Limitations  begins  to  run  from  the  time 
actual  adverse  possession  is  taken  only. 

The  disability  of  marriage  cannot  be  added  to  the  prior  disability  of 
infancy,  to  avoid  the  operation  of  the  statute  only. 

W.  L.  owned  a  tract  of  land  containing  two  hundred  and  eighty-seven  acres, 
under  an  application  and  survey,  of  which  he  never  had  actual  possession, 
and  died  in  1784,  leaving  issue  Elizabeth  in  her  minority,  who  at  the  age  of 
twenty  married  J.  C.,  in  April  17X7.  At  the  time  of  the  death  of  W.  L.,  all 
but  eighty  acres  of  the  said  tract  was  held  adversely  by  C.  S.,  under  a 
younger  title,  by  improvement,  warrant  and  survey,  who  in  1793  bought, 
under  another  title,  the  said  eighty  acres,  and  took  possession,  which  was 
held  by  those  claiming  under  him.  J.  C.  intermarried  with  E.,  died  in  1815, 
and,  to  February  term  1818,  the  said  E.  C.  brought  ejectment :  Held,  that  as 
to  so  much  of  the  tract  of  which  the  said  C.  S.  had  adverse  possession  at  the 
death  of  W.  L.,  the  said  E.,  his  daughter,  was  barred  by  the  Statute  of 
Limitations,  but  that  as  to  the  eighty  acres  of  which  the  said  C.  S.  took 
adverse  possession  in  1793,  she  was  not  barred. 

When  the  right  to  the  eighty  acres  descended  to  E.  C.  in  law,  she  acquired 
the  possession,  and  the  true  construction  of  the  act  of  limitations  gives  a 
feme  covert  the  same  time  when  adverse  possession  is  taken  of  her  lands  while 
she  is  covert,  as  it  would  have  given  her  if  there  had  been  adverse  possession 
and  the  lands  had  descended  to  her  when  she  was  covert. 

WRIT  of  of  error  to  the  Common  Pleas  of  Westmoreland  county. 

Foster,  for  the  plaintiff  in  error. 
Alexander,  for  defendant  in  error. 

The  facts  of  the  case  are  fully  stated  in  the  opinion  of  the  court, 
•which  was  delivered  by 

HUSTON,  J. — This  was  an  ejectment  by  Adam  Stitler  against 
Elizabeth  Carlisle,  who  having  died,  her  heirs  were  substituted  de- 
fendants by  consent.  The  case  was  considered  in  the  nature  of  a 
special  verdict,  either  party  to  be  at  liberty  to  take  a  writ  of  error. 
One  Michael  Byerly  and  another  made  an  improvement  and  built  a 
cabin,  in  1773,  and  sold  the  right  to  Conrad  Stitler,  who  moved  to 
the  land  and  lived  on  it  until  his  death  about  171)6.  In  1786,  C. 
Stitler  took  out  a  warrant  for  three  hundred  acres,  describing  the 
land  and  paying  interest  from  1st  March  1772 — the  same  year  he 
got  a  survey  made  and  returned,  containing  three  hundred  and 
eight  acres.  On  the  25th  July  1769,  John  Irvine  obtained  an  ap- 
plication No.  366H,  for  three  hundred  acres  of  land  on  Brush  creek, 
at  the  mouth  of  Irvine's  run,  and  about  two  miles  below  the  mouth 
of  Bunky  run.  On  the  12th  April  1790,  a  survey  was  made  on 
this  by  13.  Lodge,  a  deputy-surveyor,  of  two  hundred  and  eighty- 
seven  acres  (this  survey  was  in  all  respects  the  same  as  to  courses, 
distances  and  corners,  with  another  survey  to  be  mentioned  directly). 


1829.]  OF  PENNSYLVANIA.  7 

[Carlisle  v.  Stitler.] 

In  1791,  John  Irvine  got  a  patent,  and  in  1793  sold  the  land 
with  warranty  to  Conrad  Stitler.  This  latter  survey  interfered 
greatly  with  Stitler's  survey  on  his  warrant;  only  about  eighty 
acres  were  clear  of  his  own  former  survey  on  his  warrant.  Stitler 
and  his  family  occupied  the  lands  until  1811,  and  died;  on  a  writ 
of  partition,  the  land  in  question,  being  that  part  which  did  not 
interfere  with  Stitler's  old  survey,  was  allotted  to  Adam  Stitler, 
one  of  the  heirs  of  Conrad  Stitler.  Conrad  Stitler  and  his  heirs 
were  in  possession  of  and  claimed  all  the  land  embraced  in  both  the 
surveys  before  mentioned,  and  are  yet  in  possession  of  the  land 
embraced  in  said  surveys,  except  the  one-fourth  part  of  that  part 
of  the  survey  of  John  Irvine,  which  did  not  interfere  with  Stitler's 
old  tract.  On  the  25th  July  1769,  John  Irvine,  Indian  trader 
(being  the  same  man  who  entered  the  preceding  application,  No. 
36158),  entered  another  application  No.  3663,  for  three  hundred 
acres  on  the  waters  of  Brush  creek,  on  the  southwest  side  of  the  new 
road,  £c.  On  the  4th  May  1771,  he  sold  this  to  William  Lyon  for 
20/.,  by  deed  recorded  in  1787.  On  the  22d  June  1772,  a  survey 
was  made  of  two  hundred  and  eighty  acres,  and  returned  in  Octo- 
ber 1772.  This  survey,  I  said  before,  was  the  same  afterwards 
taken  in  1790,  under  the  other  application  in  the  name  of  John 
Irvine. 

William  Lyon  never  was  in  actual  possession  of  any  part  of  the 
land  ;  he  died  in  1784,  leaving  a  son  born  in  1764,  who  died  in 
1817.  There  was  another  son  who  died  without  issue,  and  intes- 
tate, and  a  daughter,  Elizabeth  Lyon,  born  in  1767,  and  who  mar- 
ried John  Carlisle  on  the  16th  April  1787.  John  Carlisle  died  in 
1815,  and  to  February  term  1818,  Elizabeth  Carlisle  brought  an 
action  of  ejectment  against  the  said  Adam  Stitler  for  the  undivided 
fourth  part  of  two  hundred  and  eighty-seven  acres  contained  within 
the  survey  of  John  Irvine,  and  she  recovered  an  undivided  fourth 
part  of  all  that  part  of  that  survey  which  lay  east  of  the  survey  in 
Conrad  Stitler's  name  and  judgment  on  the  verdict  in  1821  :  and 
for  that  part  within  the  survey  of  Conrad  Stitler,  verdict  and  judg- 
ment for  defendant.  Elizabeth  Carlisle  entered  into  possession  of 
the  part  so  recovered  by  her,  and  this  suit  is  brought  by  Adain 
Stitler  to  try  again  her  right  to  that  land. 

It  will  be  seen  then,  that  her  right  descended  to  Elizabeth  Lyon, 
in  1784,  when  she  was  an  infant.  That  she  married  John  Carlisle 
in  April  1784,  being  then  aged  about  twenty  years.  That  her 
husband  lived  until  about  1815,  and  she  brought  her  suit  in  1818. 
It  was  contended  that  being  a  minor  when  these  lands  descended  to 
her,  allowing  twenty-one  years,  and  then  ten  years  more  on  account 
of  her  infancy,  which  was  all  that  in  any  case  could  be  asked,  the 
time  (thirty-one  years),  expired  in  the  year  1815.  ami  that  her 
recovery  in  a  suit  brought  in  1818,  was  against  right.  It  is  true 
that  the  disability  of  marriage  cannot  be  added  to  the  prior  dis- 
ability of  infancy  ;  nor  can  the  infant  child  of  a  woman  who  dies 


8  SUPREME  COURT  [Pittsburgh 

[Carlisle  r.  Stitler.] 

covert,  have  a  longer  period  than  its  mother  would  have  had  if  she 
had  survived  her  husband.  The  part  of  the  claim  which  affected 
lands  of  which  Conrad  Stitler  was  in  possession  when  William 
Lyon  died,  came  within  the  principle ;  and  it  was  rightly  decided 
that  as  to  Stitler's  old  survey,  Mrs.  Carlisle  was  barred.  But  the 
eighty  acres,  part  of  which  is  now  in  dispute,  which  was  within  the 
first  survey,  on  application  John  Irvine,  No.  36G3,  and  which  was 
included  in  the  survey  on  application  No.  3668,  was  not  claimed  or 
occupied  by  Stitler,  until  after  1792,  when  he  bought  it  from  John 
Irvine.  The  possession  and  the  right  of  this  part  descended  to- 
gether to  Elizabeth  Lyon,  and  both  right  and  possession  continued 
in  her  until  Stitler  purchased  from  Irvine,  and  he  being  in  actual 
possession,  totally  ignorant  of  any  claim  but  his  own,  held  for  him- 
self and  adverse  to  all  the  world.  At  the  time  he  acquired  this 
possession  and  right,  Elizabeth  was  a  married  woman.  As  to  this 
part,  of  which  she  was  not  disseised  until  1792  or  3,  she  being 
covert  at  that  time,  the  statute  did  not  run  against  her  until  her 
husband's  death,  and  she  brought  her  suit  within  three  years  from 
that  time. 

The  Act  of  the  26th  March  1785,  says,  "  From  henceforth  no 
person  shall  make  entry  into  any  manors,  lands,  tenements  or  here- 
ditaments, after  the  expiration  of  twenty-one  years  next  after  his, 
&c.,  right  or  title  to  the  same  first  accrued."  In  this  clause  it  is 
evident  the  writer  did  not  know  that  an  entry  was  not  necessary  in 
any  case  in  Pennsylvania,  in  order  to  enable  the  person  who  had 
title  to  recover  the  possession  of  lands.  It  seems  not  to  have  been 
considered  that  the  possession,  and  the  right,  in  all  cases  descended 
or  accrued  together,  unless  there  was  an  adverse  possession  at  the 
time  the  title  vested ;  and  if  adverse  possession  was  taken  after- 
wards, the  twenty-one  years  began  to  run  from  the  commencement 
of  adverse  possession.  The  next  clause  is  more  easily  understood : 
"  nor  shall  any  person  whatever  have  or  maintain  any  writ  of  right, 
or  any  real  or  possessory  writ  or  action,  for  any  manor,  lands,  tene- 
ments or  hereditaments,  of  the  seisin  and  possession  of  him,  her  or 
themselves,  his,  her  or  their  ancestors  or  predecessors,  nor  declare 
or  allege  any  other  seisin  or  possession  of  him,  her  or  themselves, 
his,  her  or  their  ancestors  or  predecessors,  than  within  twenty-one 
years  next  before  such  writ,  action  or  suit,  so  hereafter  to  be  sued, 
commenced  or  brought."  But  though  it  is  easily  understood,  it  is 
not  because  in  the  construction  of  it  any  attention  was  paid  to 
grammar,  or  any  care  shown  to  avoid  unnecessary,  and  in  that 
place,  unmeaning  words ;  but  it  shows  clearly  enough,  that  this 
statute  does  not  affect  a  man  who  is  in  possession,  I  repeat,  until 
some  person  actually  enters  on  him,  enters  an  adverse  claim. 

The  fourth  section  containing  the  savings  for  infants,  married 
women,  &c.,  has  the  same  inaccuracy  as  the  first  clause  of  the  second 
section  above  mentioned,  and  would  seem  to  make  the  statute  run 
against  infants,  married  women,  &c.,  although  they  were  themselves 


1829.]  OF  PENNSYLVANIA.  9 

[Carlisle  ».  Stitler.] 

in  possession.  The  truth  is,  the  statute  was  made  to  bar  those  ou* 
of  possession,  and  who  continued  out  of  possession,  and  did  not 
bring  suit  within  the  time  prescribed  for  each.  The  law  does  not 
refer  or  apply  to  those  in  possession,  except  to  protect  them  after 
certain  prescribed  periods.  The  second,  third  arid  fourth  sections 
all  suppose  persons  to  be  out  of  possession,  and  limit  the  periods 
within  which  they  must  bring  suits,  according  to  the  age  and  situa- 
tion of  each  :  while  in  possession  it  has  no  application.  Mrs.  Car- 
lise  then,  was  in  possession  at  the  time  this  land  descended  to  her — 
in  possession  when  she  married,  and  until  1793,  when  Stitler's  ad- 
verse title  and  possession  commenced — and  the  true  construction  of 
the  act  gives  her  the  same  time  where  adverse  possession  is  taken 
of  her  lands  while  she  is  covert,  as  it  would  have  given  her,  if  there 
had  been  adverse  possession,  and  the  lands  had  descended  to  her 
when  she  was  covert.  Judgment  for  plaintiff  in  error. 

Referred  to,  9  Ban-  41  ;  9  Smith  305 ;  25  Id.  416. 

Followed  in  Marple  v.  Myers,  2  Jones  122;  2  C.  482.     And  see  Act  22d 
April  1850,  \  1,  Pamph.  L.  532. 


Williamson  against  Mitchell. 


IN    ERROR. 


Upon  an  appeal  from  the  judgment  of  a  justice  of  the  peace  by  the  plain- 
tiff, the  bail  entered  into  a  recognisance,  which  was  taken  by  the  justice  in 
these  words  :  "  J.  W.  bound  in  a  sum  to  cover  all  costs,"  which  was  held  to  be 
void,  and  upon  which  there  could  be  no  recovery  on  a  scire  facias  against  the 
bail. 

THE  writ  of  error  in  this  case  was  to  the  Common  Pleas  of  Mer- 
cer county. 

A  judgment  was  rendered  in  a  suit  brought  before  a  justice  of 
the  peace  by  Robert  Lyon  against  John  Mitchell,  from  which  the 
plaintiff  appealed,  and  John  Williamson,  the  defendant  in  the  court 
below,  and  plaintiff  in  error  in  this  suit,  was  his  security,  whose 
recognisance  was  taken  by  the  justice  in  these  words:  ''John  Wil- 
liamson bound  in  a  sum  certain  to  cover  all  costs,  tiiat  plaintiff  will 
prosecute  this  appeal  with  effect."  This  suit  was  a  scire  facias  upon 
that  recognisance,  in  which  John  Mitchell  was  plaintiff,  and  John 
AVilliamson  defendant.  The  following  is  a  copy  of  the  writ  which 
issued : 

MERCER  COUNTY,  SCT. 

The  Commowvealth  of  Pennsylvania  to  the  Sheriff  of  Mercer 

county,  greeting  : 

We  command  you,  that  you  summon  John  Williamson,  bail  of 
Robert  Lyon,  to  be  and  appear  before  our  judges  at  Mercer,  at  our 
county  Court  of  Common  Pleas,  there  to  be  held  for  said  county, 
on  the  third  Monday  of  November  next,  to  show  cause  why  he 


10  SUPREME  COURT  [Pittsburgh 

[Williamson  v.  Mitchell. 

should  not  pay  the  costs  taxed,  in  the  case  wherein  Robert  Lyon  by 
Joseph  Lyon,  was  plaintiff,  and  John  Mitchell  was  defendant,  and 
have  you  then,  there,  this  writ.  Witness  the  Hon.  Henry  Shippen, 
president  of  our  said  court,  at  Mercer,  the  26th  August  1826. 

WM.  S.  RANKIN,  Proth'y. 

The  defendant  pleads,  Null  tiel  record  and  Nil  debet.  Replica- 
tion, Habetur  tale  recordum.  Issue. 

The  plaintiff  offered  in  evidence  a  transcript  of  an  appeal  from 
the  judgment  of  Alexander  Dumars,  Esq.,  in  a  suit  wherein  Robert 
Lyon  was  plaintiff,  and  John  Mitchell  was  defendant,  dated  the  1st 
December  1823,  on  which  transcript  were  the  following  words : 
"  December  1st  1823,  an  appeal  applied  for  by  Joseph  Lyon — John 
Williamson  bound  in  a  sum  to  cover  all  costs,  that  plaintiff  will 
prosecute  this  appeal  with  effect,"  which  evidence  was  objected  to 
by  the  defendant,  and  the  court  overruled  the  objections,  and  sealed 
a  bill  of  exceptions. 

The  court  was  requested  by  the  plaintiff's  counsel  to  charge  the 
jury,  that  the  recognisance  upon  which  the  writ  issued  was  void,  in 
consequence  of  its  non-compliance  with  the  Act  of  Assembly,  and 
that,  therefore,  there  could  be  no  recovery  in  this  suit :  which  the 
court  refused  to  do,  but  instructed  the  jury  that  the  recognisance 
was  valid,  and  the  plaintiff  had  a  right  to  recover. 

Three  errors  were  assigned  in  this  court. 

1st.  The  court  erred  in  admitting  the  transcript  in  evidence. 

2d.   They  erred  in  their  charge  to  the  jury. 

3d.  That  there  is  no  cause  of  action  stated  in  the  scire  facias. 

Bredin  and  Banks  for  plaintiff  in  error. — The  transcript  of  the 
justice,  although  filed  in  the  prothonotary's  office,  is  not  evidence. 
A  justice  has  no  seal  by  which  his  acts  are  authenticated ;  and  his 
certificate  that  the  transcript  is  truly  copied  from  his  docket  is  not 
entitled  to  greater  weight  than  the  certificate  of  any  other  person 
not  on  oath  to  a  fact  within  his  knowledge.  The  evidence  was 
nothing  more  than  the  allegation  of  the  justice  that  a  recognisance 
had  been  entered  into  by  Williamson  before  him :  O'Donnel  v.  Sey- 
bert,  13  S.  &  R.  54. 

The  5th  section  of  the  Act  of  1810,  Purd.  Dig.  452,  provides 
the  form  in  which  the  recognisance  shall  be  taken,  so  far  as  respects 
the  condition  ;  but  the  recognisance  upon  which  this  suit  is  brought, 
does  not  contain  an  obligation  certain  in  amount,  nor  does  it  contain 
the  conditions  required  by  the  act,  even  substantially,  which  it 
ought  to  do  in  order  to  its  validity :  Commonwealth  v.  Emery,  2 
Binn.  431 ;  Langs  v.  Galbraith,  1  S.  &  R.  491 ;  Bolton  v.  Robin- 
son, 13  Id.  193;  King  v.  Culbertson,  10  Id.  325. 

3d.  The  writ  of  scire  facias  does  not  contain  an  allegation  or 
charge  that  the  defendant  ever  entered  into  a  recognisance,  or  that 
such  a  recognisance  exists.  The  plea  of  nul  ticl  record  would  be 


Sept.  1829.]  OF  PENNSYLVANIA.  11 

[Williamson  ».  Mitchell.] 

inapplicable  to  it,  for  it  recites  no  record ;  there  could  therefore,  be 
no  recovery  upon  it.     Withrow  v.  Commonwealth,  10  S.  &  11.  231. 

Moore  and  Foster  for  defendants  in  error. — There  is  no  necessity, 
in  order  to  the  validity  of  a  recognisance  taken  by  a  justice  of  the 
peace,  that  it  should  be  drawn  out  at  length  upon  his  record ;  a 
short  memorandum  from  which  it  may  be  drawn  out  if  necessary,  is 
a  substantial  compliance  with  the  act.  But  it  was  too  late  upon  the 
trial  of  the  cause,  to  take  advantage  of  the  defect,  if  one  existed. 

The  rule  on  this  subject  is  correctly  laid  down  in  Means  v.  Trout, 
16  S.  &  11.  349. 

PER  CURIAM.— It  is  impossible  to  support  this  judgment.  A 
recognisance  is  an  obligation  of  record,  with  condition  to  pay  money, 
or  do  some  particular  act ;  and  it  is  in  most  respects  like  any  other 
bond,  the  chief  difference  consisting  in  this,  that  a  bond  is  the  crea- 
tion of  a  fresh  debt,  and  a  recognisance  the  acknowledgment  of  a 
former  one.  Here  the  justice  has  certified  that  the  bail  was  "bound 
in  a  sum  sufficient  to  cover  all  costs."  What  was  that  sum  ?  It 
was  impossible  for  the  appellee  to  know  what  to  demand.  Even 
the  Act  of  Assembly  under  which  the  proceedings  were,  requires 
the  bail  to  be  taken  in  a  sum  ;  and  it  is  not  sufficient  for  the  justice 
to  state  the  fact  generally  in  the  words  of  the  act,  without  showing 
in  the  recognisance  what  the  sum  was. 

In  an  indictment  it  is  not  enough  to  pursue  the  very  words  of  a 
statute  which  has  created  the  offence,  it  being  necessary  to  allege 
the  special  fact  in  which  the  offence  consists :  2  Hawk.  354.  Here 
the  fact  by  which  only  an  obligation  could  be  incurred,  the  acknow- 
ledgment of  indebtedness  in  a  sum  certain — is  not  alleged.  The 
recognisance  is  therefore  void ;  and  even  if  it  were  valid  as  a  stipu- 
lation, still  an  action  of  assumpsit,  and  not  of  scire  facias,  would  be 
the  remedy.  But  the  scire  facias  is  even  more  defective  than  the 
recognisance.  It  neither  recites  the  recognisance,  nor  alleges  any 
fact  to  entitle  the  plaintiff  to  execution  ;  but  resembles  a  rule  to 
show  cause  more  than  anything  else.  Its  defects  are  not  cured  by 
the  verdict,  because  it  sets  forth  nothing,  either  in  substance  or  in 
form,  which  resembles  a  cause  of  action,  and  being  in  the  place  of 
a  declaration,  it  is  incurably  vicious.  It  mortifies  ones  professional 
pride  to  find  such  a  writ  among  our  records,  for  which  the  alleged 
incompetency  of  the  prothonotary  is  no  apology,  it  being  the  busi- 
ness of  the  attorney  to  see  to  the  form  of  the  process.  Such  loose- 
ness is  discreditable  to  the  practice  of  the  courts,  and  we  are  there- 
fore compelled  to  speak  of  it  with  marked  disapprobation. 

Judgment  reversed. 

HUSTON,  J.,  and  SMITH,  J.,  dissented. 

Referred  to,  S  Smith  218. 
Followed,  2  W.  448. 


12  SUPREME  COURT  [Pittsburgh 


Harvey  against  Boies. 

Words  which  impute  an  offence  against  morality,  are  not  actionable,  unless 
the  offence  he  indictahle,  or  induce  some  legal  disability.  Therefore  to  say, 
"  J.  II.  swore  a  lie  before  the  sessions,  and  I  can  prove  it  by  twenty  witnesses," 
is  not  actionable. 

THIS  record  was  returned  with  a  writ  of  error  which  issued  to  the 
Court  of  Common  Pleas  of  Beaver  county,  where  it  was  an  action 
of  slander  brought  by  John  Harvey,  the  plaintiff  in  error,  against 
John  Boies,  the  defendant  in  error,  for  speaking  the  following  words : 
"John  Harvey  swore  a  lie  before  the  sessions,  and  I  can  prove  it 
by  twenty  people;"  which  the  court  below  (Shaler,  president), 
charged  the  jury  were  not  actionable,  and  the  plaintiff  therefore 
could  not  recover — to  which  opinion  the  plaintiff  excepted,  and  the 
same  was  assigned  for  error  in  this  court. 

Fetterman  for  the  plaintiff  in  error. — Christianity  is  a  part  of  the 
law,  and  ecclesiastical  tribunals  are  essential  to  its  propagation  and 
existence,  and  hence  the  necessity  of  recognising  as  judicial,  those 
tribunals  which  have  been  erected  among  all  denominations  for  the 
administration  of  those  laws,  which  although  peculiar  to  the  respect- 
ive subjects  of  them,  are  nevertheless  binding  and  obligatory.  To 
deprive  them  of  their  habitual  mode  of  inquiring  after  truth,  is  to 
deprive  them  of  the  power  of  administering  their  laws,  and  punishing 
in  their  own  way,  offenders.  The  offence  of  false  swearing,  before 
the  tribunal  of  an  ecclesiastical  body,  is  in  point  of  morality,  as 
great  as  perjury  before  a  temporal  court;  and  every  reason  which 
prompts  the  punishment  of  the  offender  in  one  case,  is  equally 
applicable  to  the  other. 

In  the  course  of  his  argument,  Mr.  Fetterman  cited,  Common- 
wealth v.  Updegraff,  2  Day  3;  McMillan  v.  Birch,  1  Binn.  186;  1 
Croke  135,  185 ;  Eckert  v.  Wilson,  10  S.  &  R.  47 ;  Guardians  of 
the  Poor  v.  Greene,  5  Binn.  555;  Hawk.  Pleas  of  the  Crown  430, 
book  1,  chap.  3. 

//.  M.  Watts,  for  defendant  in  error. — Actionable  words  must 
contain  in  themselves  an  express  imputation  of  an  offence  which 
would  be  indictable,  and  which  might  subject  the  party  to  infamous 
punishment.  Onslow  i\  Horn,  3  Wilson  180;  McClurg  v.  Ross,  5 
Binn.  218;  Shaffer  v.  Kintzer,  1  Binn.  552;  Brooker  v.  Coffin,  5 
Johns.  R.  191. 

The  office  of  the  innuendo  is  to  elucidate,  and  not  to  enlarge  the 
meaning  or  common  import  of  the  words  spoken.  Do  the  words  as 
ppoken  and  laid  in  the  declaration  charge  Boies  with  an  offence  for 
which  if  true  he  might  be  indicted,  and  if  convicted,  punished?  Per- 
jury is  false  swearing  when  a  lawful  oath  is  administered  by  a  ju- 
dicial tribunal  having  power  to  administer  an  oath.  The  sessions 


Sept.  1829.]  OF  PENNSYLVANIA.  13 

[Harvey  v.  Boies.] 

of  the  church  is  not  an  ecclesiastical  court ;  and  if  it  was,  it  is  not 
recognised  by  our  constitution  and  laws  as  a  judicial  tribunal,  or  as 
competent  to  administer  an  oath ;  to  say,  therefore,  of  a  man  that 
he  swore  falsely  before  the  sessions  of  the  church,  does  not  import 
a  charge  of  perjury,  for  which,  if  true,  the  person  charged  might 
be  indicted  and  convicted ;  and  this  is  the  true  criterion  by  which 
words  which  are  actionable,  and  those  which  are  not,  may  be 
judged  of.  Ward  v.  Clark,  2  Johns.  II.  10;  Skinner  v.  Trobe, 
Cro.  Jac.  190;  Page  v.  Krole,  Id.  436;  Shaffer  v.  Kintzer,  1 
Binn.  542. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — If  there  is  any  rule  established  by  universal  as- 
sent, it  is  that  words  which  impute  an  offence  against  morality,  are 
not  actionable  unless  the  offence  be  indictable,  or  induce  some  legal 
disability.  No  one  will  pretend  that  perjury  can  be  assigned  in 
an  extra-judicial  oath  ;  and  to  assert  that  every  oath  is  judicial  in 
the  technical  sense  of  the  word,  which  it  may  be  lawful  and  proper 
to  administer,  would  ascribe  to  tribunals  merely  spiritual  the  or- 
dinary attributes  of  temporal  authority :  a  connection  which  no 
friend  to  the  purity  of  religion  would  wish  to  see  established.  From 
time  immemorial  Christians  of  every  denomination  have  doubtless 
had  their  ecclesiastical  courts ;  and  to  these  is  allowed  full  and  free 
power  to  adjudicate  on  matters  submitted  to  them.  But  when  the 
civil  magistrate  is  called  in  to  punish  for  a  disregard  of  the  sanc- 
tions which  they  impose,  it  becomes  a  question  whether  he  can  in- 
terpose, without  perverting  his  power  from  its  legitimate  objects. 
Christianity  lias  been  indefinitely  said  to  be  a  part  of  the  law  of  the 
land.  The  law  undoubtedly  avails  itself  of  the  obligations  of  Chris- 
tianity as  instruments  to  accomplish  the  purposes  of  justice.  But 
judicial  oaths  are  not  founded  exclusively  on  the  belief  of  the 
Christian's  revelation,  a  Jew  or  a  Gen  too  being  allowed  to  swear 
in  the  form  prescribed  by  his  faith.  Christianity  is  indeed  recog- 
nised as  the  predominant  religion  of  the  country,  and  for  that  rea- 
son, are  not  only  its  institutions,  but  the  feelings  of  its  professors, 
guarded  against  insult  from  reviling  or  scoffing  at  its  doctrines  ;  so 
far  it  is  the  subject  of  special  favor.  But  further  the  law  does  not 
trotect  it.  Happily,  it  neither  needs  nor  endures  the  patronage 
»f  temporal  authority,  from  contact  with  which  it  is  proved  by  all 
experience,  to  contract  defilement.  But  perjury  is  punishable  in 
the  temporal  courts,  not  for  its  moral  guilt,  but  its  consequences  to 
the  public  at  large,  in  obstructing  the  administration  of  distributive 
justice.  Its  consequences,  however,  do  not  affect  the  public  at 
large,  where  it  has  been  committed  in  an  ecclesiastical  court, 
inasmuch  as  they  consist  in  the  obstruction  of  discipline  among  the 
members  of  the  particular  sect ;  and  to  punish  it  as  an  offence 
against  the  public,  would  be  to  treat  it  as  what  it  clearly  is  not, 
and  to  enforce  by  the  civil  arm  the  laws  of  a  religious  society  ;  an 


14  SUPREME   COURT  [Pittsburgh 

[Harvey  r.  Boies.] 

object  foreign  to  the  aim  of  temporal  government.  If,  then,  false 
swearing  in  a  spiritual  matter  be  not  in  reason,  as  it  certainly  is 
not  in  point  of  authority,  an  indictable  perjury,  what  show  of  ar- 
gument is  there  in  favor  of  the  position  that  words  which  impute  it 
are  actionable  ? 

According  to  the  principles  of  the  action  as  now  universally  un- 
derstood, it  is  not  the  infamy  of  the  charge  which  constitutes  the 
injury,  but  the  danger  created  by  it  of  sustaining  a  criminal  prose- 
cution or  incurring  a  legal  disability.  This  distinction  is  a  guide 
which  leads  through  every  intricacy  of  circumstances  to,  at  least, 
certainty  of  conclusion.  It  is  of  little  account  that  the  infamy  is 
in  fact  the  substantial  injury.  To  have  any  law  at  all  in  the  world, 
it  is  necessary  that  the  consequences  of  human  actions  be  deter- 
mined beforehand  by  fixed  principles,  and  not  subsequently  by  the 
arbitrary  discretion  of  the  magistrate  ;  and  the  law  of  slander  as  it 
is  already  established,  is,  if  not  as  consistent  with  what  may  be 
thought  natural  justice,  certainly  more  convenient  in  practice  than 
the  anomalous  mass  that  would  be  produced  by  deciding  every  case 
on  its  circumstances,  according  to  the  dictates  of  reason  or  of  pas- 
sion. In  any  event,  we  are  not  at  liberty  to  declare  the  law  other- 
wise than  as  we  find  it ;  and  according  to  the  authorities,  with  a 
single  exception,  the  words  laid  and  proved  are  not  actionable. 

Judgment  affirmed. 


Pumroy  against  Lewis. 

IN    ERROR. 

The  prothonotary  of  the  Court  of  Common  Pleas  has  no  power  to  admin- 
ister the;  oath  required  to  obtain  u  writ  of  error. 

ERROR  to  the  Common  Pleas  of  Erie  county. 

Jlalbit  moved  to  quash  the  writ  of  error  in  this  case,  because  the 
affidavit  was  sworn  to  before  the  prothonotary  of  the  Common  Pleas, 
who,  he  insisted,  has  no  power  to  administer  an  oath  except  in 
special  cases,  when  he  derives  the  power  from  positive  enactment. 

Pearcon  and  Rarrrtt,  contra,  argued  that  under  the  former  con- 
stitution of  the  Common  Pleas,  the  prothonotary,  being  one  of  the 
judges,  had  a  general  power  to  administer  oaths,  which  he  still  re- 
tains by  virtue  of  the  twelfth  section  of  the  Act  of  the  13th  April 
1791,  Purd.  401. 

PER  CURIAM. — Formerly  this  officer  had  a  general  power  to  ad- 
minister judicial  oaths  by  virtue  of  his  office,  not  of  prothonotary, 
but  of  judge;  but  when  the  two  offices  came  to  be  separated,  the 


Sept.  1829.]  OF  PENNSYLVANIA.  15 

[Pumroy  v.  Lewis.] 

powers  incidental  to  them  were  also  separated,  reddendo  singula 
singulis,  except  so  far  as  the  contrary  was  specially  provided.  /  But 
the  judicial  powers  retained  by  prothonotaries  under  the  provisions 
of  the  Act  of  1791,  extend  no  further  than  to  signing  judgments, 
writs  and  process,  and  to  taking  bail.  Had  the  general  power  to 
administer  oaths  been  supposed  to  be  retained,  of  course  it  would 
scarce  have  been  thought  necessary  to  give  a  power  specially  limited 
to  the  business  of  the  office.  But  a  prothonotary  of  the  Common 
Pleas  has  nothing  to  do  with  expediting  the  writs  of  the  Supreme 
Court ;  consequently  the  affidavit  to  ground  a  writ  of  error  must  be 
sworn  to  before  the  prothonotary  of  the  Supreme  Court,  or  some 
officer  who  has  a  general  power  to  administer  oaths. 

Writ  quashed. 

Remedied  by  25  April  1850,  §  29,  P.  L.  574. 


King  against  King  et  al. 

A  justice  of  the  peace,  being  a  judicial  officer,  must  have  his  court  or  place 
of  administering  justice:  and  in  order  to  the  validity  of  an  amicable  judg- 
ment upon  his  docket,  the  party  confessing  the  same  must  be  before  him,  and 
at  his  office. 

THE  plaintiff  in  error,  who  was  also  the  plaintiff  below,  sued  out 
this  writ  of  error  to  the  Common  Pleas  of  Erie  county,  to  remove 
the  record  of  a  suit  which  originated  upon  a  writ  of  scire  facias  to 
revive  a  judgment  against  Earl  King,  obtained  and  entered  under 
the  following  circumstances  : — 

An  unsettled  account  existed  between  the  plaintiff  and  defendant, 
and  they,  without  any  other  authority  than  their  own  consent, 
called  together  three  of  their  neighbors,  to  whom  they  agreed  to 
refer  their  respective  claims.  After  the  parties  had  exhibited  their 
accounts,  on  the  one  side  and  the  other,  in  consequence  of  their 
conduct,  one  of  the  arbitrators  proposed  to  separate,  and  alleged 
that  the  parties  could  settle  amicably  themselves.  The  parties  then 
Sirt  down  and  examined  the  accouuts  of  each  other ;  items  on  each 
side  were  agreed  and  objected  to ;  it  finally  resulted  in  an  agree- 
ment, that  there  should  be  a  report  of  the  arbitrators  for  $~>00  in 
favor  of  Robert  T.  King,  against  his  father,  Earl  King,  £">0  of 
which  was  to  be  paid  in  hand,  and  Earl  King  was  to  give  a  judg- 
ment upon  the  docket  of  John  McCord,  Esq.,  a  justice  of  the  peace, 
who  was  also  one  of  the  three  arbitiators  present,  for  £4~>0,  with 
stay  of  execution  till  the  death  of  the  defendant.  Earl  King.  This 
arrangement  took  place  at  the  house  of  Earl  King,  where  John 
McCord,  Esq.,  the  justice,  made  a  note  in  writing  of  the  amount 
agreed  upon  to  be  entered  as  a  judgment  upon  his  docket,  and 
showed  it  to  the  defendant,  who  was  satisfied.  The  justice  then 


16  SUPREME  COURT  [Pittsburgh 

[King  r.  King.] 

returned  home,  and  entered  the  judgment  upon  his  docket,  as  agreed 
upon  by  the  parties.  A  few  days  afterwards,  Earl  King  called  upon 
the  justice  to  know  if  the  judgment  would  carry  interest,  and  upon 
being  told  that  it  would,  he  was  dissatisfied  with  it.  A  transcript 
of  this  judgment  was  entered  upon  the  records  of  the  Common  Pleas 
of  the  county  of  Erie,  was  burnt  with  the  court-house,  and  its  place 
supplied  by  a  new  transcript,  entered  by  authority  of  the  Act  of 
Assembly,  for  that  purpose,  and  to  revive  which,  and  show  cause 
why  execution  should  not  issue,  after  the  death  of  Earl  King,  this 
scire  facias  was  issued  to  February  term  1827.  The  defendant's 
pleas  were  nul  tiel  record;  that  the  judgment  was  obtained  by 
fraud ;  and  payment,  with  leave  to  give  the  special  matter  in  evi- 
dence. The  plaintiff  replied  non  solvit,  and  no  fraud. 

By  a  suggestion  of  the  court,  the  defendants  withdrew  the  plea 
of  nul  tiel  record;  the  "plaintiff's  counsel  agreeing  to  the  admis- 
sion of  parol  evidence  on  the  plea  of  fraud." 

Much  evidence  was  given  on  one  side  arid  the  other,  as  to  the 
mental  capacity  of  the  defendant,  Earl  King,  to  attend  to  his  own 
business,  at  the  time  he  agreed  to  the  amount  of  the  report  which 
the  arbitrators  should  make :  all  which  was  submitted  by  the  court 
to  the  jury  as  a  matter  of  fact. 

The  court  (Shippen,  president),  in  their  charge  to  the  jury  on 
the  subject  of  the  alleged  fraud,  in  obtaining  the  judgment,  said, 
"  that  no  evidence  of  or  security  for  a  debt  could  be  framed  or  taken 
which  would  preclude  an  inquiry  into  the  transaction  if  fraudulent ; 
and  that  this  rule  applied  to  the  cause  now  trying;  for  if  the  jury 
believe  that  the  judgment  was  obtained  by  fraud,  in  consequence 
of  the  mental  incapacity  of  the  defendant,  it  is  void ;  that  a  con- 
fession of  judgment  of  this  kind,  before  a  justice  of  the  peace,  for 
so  large  a  sum  of  money,  is  dangerous  ;  for  the  only  place  and  man- 
ner in  which  a  judgment  entered  for  a  sum  above  §100,  before 
a  justice,  and  a  transcript  thereof  filed,  could  be  inquired  into,  would 
be  on  a  scire  facias  to  revive ;  when  the  question  might  be  met — 
that  there  was  no  chance  of  relief  for  the  defendant,  unless  the 
plaintiff  is  under  the  necessity  of  issuing  a  scire  facias,  and  then  the 
question  might  be  met ;  that  as  the  parties  did  not  appear  before 
the  justice  to  enter  the  judgment,  and  as  the  justice  merely  took  the 
admission  of  defendant,  as  to  the  amount  of  this  judgment,  at  de- 
fendant's house,  where  he  was  called  as  an  arbitrator,  and  entered 
it  in  his  docket  when  he  went  home,  in  such  a  manner  as  to  carry 
interest  from  the  date,  when  it  docs  not  appear  so  intended  by 
Earl  King,  it  is  not  a  good,  binding  judgment  under  the  Act  of 
Assembly." 

The  jury  returned  the  following  verdict :  "  That  they  find  for 
defendants,  on  the  ground  of  the  judgment  being  void  and  illegal, 
and  not  on  the  plea  of  fraud." 

In  this  court  the  following  errors  were  assigned : 

1st.   The  plea  of  fraud  was  impertinent  and  illegal. 


Sept.  1829.]  OF  PENNSYLVANIA.  17 

[King  0.  King.] 

2(1.  The  court  erred  in  charging  the  jury,  that  the  merits  of  the 
judgment  could  be  investigated,  and  the  judgment  annulled,  on  the 
ground  of  fraud,  in  the  scire  facias  suit. 

3d.  The  court  erred  in  charging  the  jury,  that  the  judgment  was 
not  a  good  and  binding  one  under  the  Act  of  Assembly. 

4th.  The  jury  having  found  that  the  judgment  before  the  justice 
was  not  obtained  bv  fraud,  could  not  find  by  their  verdict  that  it  was 
illegal  and  void. 

Selden,  for  plaintiff  in  error.  —  The  only  question  to  be  decided  is, 
whether  this  judgment  is  illegal  or  not.  By  reference  to  the  14th 
section  of  the  Act  of  1810,  Purd.  Dig.,  it  will  be  seen  that  the  pro- 
ceedings in  obtaining  this  judgment,  have  strictly  conformed  to  the 
provisions  of  that  act;  and  what  it  was  that  induced  the  court  to  in- 
struct the  jury  that  this  was  not  a  valid  and  binding  judgment,  is 
difficult  to  determine.  The  merits  of  the  original  judgment  cannot 
be  inquired  into  on  a  plea  to  a  scire  facias;  the  cases  in  which  judg- 
ments have  been  overhauled,  is  for  something  occurring  since  the 
entry  of  the  judgment.  I  had  thought  that  the  adjudication  of  the 
case  of  Benton  v.  Burgot,  10  S.  &  R.  240,  was  decisive.  There 
the  plaintiff  replied  to  the  first  plea,  that  there  is  such  a  record, 
and  demurred  to  the  second,  viz.  :  that  it  was  obtained  by  fraud,  &c. 
The  court  overruled  the  demurrer,  but  this  court  on  a  writ  of  error 
said,  that  evidence  of  fraud,  imposition,  mistake,  and  want  of  con- 
sideration, is  bad  on  demurrer.  Nul  tiel  record  is  the  only  plea  of 
which  the  defendant  can  avail  himself.  Also,  the  case  of  Cardesa 
v.  Humes,  5  S.  &  11.  65,  in  which  the  court  say  "that  under  no  cir- 
cumstances can  the  merits  of  the  original  judgment  be  inquired  into 
by  the  defendant,  on  a  scire  facias,  so  as  to  enable  him  to  set  up  a 
defence  which  he  might  have  used  in  the  original  suit."  The  court 
may  open  the  judgment,  but  in  no  other  way  can  their  equitable 
power  be  interposed. 

The  objection  raised  by  the  court  below,  was  that  the  judgment 
was  not  entered  at  the  justice's  office  ;  he  took  a  note  of  it  ;  he 
showed  it  to  Earl  King  ;  he  was  satisfied.  The  court  further  say, 
it  was  not  entered  according  to  the  intent  of  the  parties  ;  we  have 
the  certificate  of  the  justice  that  it  was.  It  then  was  a  mistake  as 
to  interest  ;  that  mistake  will  not  invalidate  the  judgment. 


for  defendant  in  error,  was  requested  by  the  court  to  confine 
his  remarks  to  the  third  error  assigned. 

By  the  Act  of  Assembly  under  which  this  judgment  is  entered,  a 
limited  authority  is  given  to  justices  of  the  peace,  and  it  must  be 
strictly  pursued  ;  and  a  judgment  entered  by  authority  of  that  act, 
and  not  in  conformity  with  its  provisions,  is  void:  Alborty  r.  Daw- 
son,  1  Binn.  100;  Brenneman  r.  Greenawalt,  1  S.  &  K.  30.  The 
act  provides  that  the  parties  shall  voluntarily  appear  before  him  for 

1  P.  &  W.—  2 


18  SUPREME  COURT  [Pittsburgh 

[King  v.  King.] 

the  purpose,  when  the  judgment  is  to  be  entered  for  a  sum  exceed- 
ing $100;  in  this  case,  the  parties  did  not  appear  before  him  at  a 
place  where  he  had  the  means  of  doing  those  things  which  the  act 
requires  of  him  ;  and  it  would  be  unsafe  and  injudicious,  to  render 
valid  the  proceedings  of  a  justice,  which  had  been  subjected  to  the 
uncertainty  of  a  treacherous  memory.  So  careful  has  the  legisla- 
ture been  to  guard  against  looseness  and  carelessness,  in  the  admin- 
istration of  the  law,  that  it  has  been  provided  that  a  justice  shall 
not  keep  his  stated  office  in  a  tavern.  The  facts  exhibit  the  danger 
of  such  looseness,  as  has  been  practised  in  this  case.  The  justice 
either  forgot  or  mistook  the  terms  upon  which  the  judgment  was 
agreed  to  by  Earl  King;  for  it  was  not  his  intention  that  the  judg- 
ment should  carry  interest  during  his  life,  or  be  satisfied  by  any- 
thing but  property  when  he  was  dead. 

A  misdirection  of  the  court  upon  matters  of  fact,  is  not  assign- 
able for  error.  Rouvert  v.  Patton,  12  S.  &  R.  253;  Long  v.  Ram- 
sey, 1  Id.  72. 

Hanks,  on  the  same  side,  whom  the  court  declined  to  hear. 

DerricJcson,  in  reply,  on  the  plaintiff's  consenting  to  withdraw 
the  plea  of  nul  ticl  record,  and  the  plea  of  fraud  being  entered,  it 
was  not  intended  by  either  party,  or  contemplated  by  the  court,  that 
the  regularity  or  validity  of  the  judgment  as  entered  by  the  justice, 
should  be  inquired  into,  but  merely  the  consideration  of  that  judg- 
ment ;  as  it  was  alleged  that  the  plaintiff  had  taken  advantage  of 
the  defendant,  then  an  aged  man,  and  in  his  dotage,  which  fact,  if 
it  should  be  established  to  the  satisfaction  of  the  jury,  it  was  agreed 
under  the  plea  of  fraud,  should  authorize  them  in  finding  for  the 
defendants.  But  even  if,  from  the  pleadings,  it  should  be  considered 
that  it  was  intended  to  submit  the  regularity  of  the  judgment  before 
the  justice  to  the  jury,  for  them  to  pass  upon,  their  privileges  and 
duties  were  infringed  upon  by  the  court,  when  they  stated  to  the 
jury  in  positive  terms,  that  the  judgment  was  void  and  illegal ; 
which  must  have  been  on  an  assumption  of  facts,  of  which  the  court 
was  not  competent  to  judge.  If,  however,  the  court  below  was 
authorized  from  an  inspection  of  the  record,  in  saying  that  the  judg- 
ment was  void  and  illegal,  then  it  was  the  province  of  this  court  to 
examine  and  ascertain,  whether  there  was  anything  to  justify  a  deci- 
sion of  the  kind.  The  principle  of  law  is  established  and  undenia- 
ble, that  the  court  and  the  jury  have  each  their  respective  duties, 
the  one  to  decide  questions  of  law,  and  the  other,  those  of  fact,  but 
here  it  was  a  difficult  matter  to  say  whether  this  had  been  adhered 
to,  for  the  court  can  only  judge  from  inspection,  and  not  from  parol 
evidence,  whether  there  is  a  record.  And,  although  there  was  no 
denial  of  the  record,  the  court  say  there  was  none ;  and  the  jury, 
after  finding  there  was  no  fraud,  assumed  the  prerogative  of  the 
court's  power,  and,  in  its  language,  respond  that  the  judgment  was 


Sept.  1829.]  OF  PENNSYLVANIA.  19 

[King  ».  King.] 

void  and  illegal,  which,  if  the  fact  was  so,  there  was  no  necessity 
of  a  finding  of  the  jury  at  all. 

By  the  Act  of  1810,  under  which  this  judgment  was  entered, 
justices  of  the  peace  are  authorized  to  enter  judgments  for  any 
amount,  when  confessed  by  the  parties.  Here  it  does  not  appear 
that  the  parties  appeared  before  the  justice  at  his  office,  to  enter  the 
judgment,  but  that  which  was  all  material  to  the  rendering  of  one, 
viz.,  the  agreement  to  the  sum,  the  stay  of  execution,  the  consent 
of  the  defendant,  and  his  directions  to  the  justice,  then,  within  his 
district,  to  enter  the  judgment;  and  the  subsequent  and  actual 
entry  by  the  justice  was  fully  complied  with ;  and  any  evidence 
there  was  that  the  judgment  was  not  to  be  paid  in  money,  but 
stock,  arid  no  interest  to  accrue  in  the  meantime,  and  declarations 
of  the  defendant,  subsequent  to  the  entry  of  the  judgment,  could 
have  no  effect  to  defeat  the  rights  of  the  plaintiff ;  and  even  if  the 
facts  had  been  so,  it  was  making  the  justice  a  party  to  the  fraudu- 
lent transaction.  As  fraudulent  it  must  have  been  in  him  to  enter 
a  judgment  contrary  to  the  parties'  agreement ;  and  would  have 
justified  the  jury  in  finding  a  verdict  for  the  defendant  under  the 
plea  of  fraud. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  irregularity  of  inquiring  into  the  validity  of 
the  original  judgment  in  the  trial  of  the  scire  facias,  was  waived  by 
the  plaintiff,  who,  in  agreeing  to  the  admission  of  parol  evidence  of 
the  alleged  fraud,  consented  to  a  trial  on  the  merits ;  and  as  the 
jury  have  negatived  the  fraud,  the  only  assignment  of  error  that 
can  be  urged,  is  that  which  relates  to  the  direction  with  respect  to 
the  objection  depending  upon  legal  grounds.  Evidence  having  been 
given  that  the  parties  being  at  the  house  of  a  third  person,  and  be- 
fore arbitrators,  of  whom  the  justice  was  one,  compromised  their 
dispute,  the  defendant  agreeing  to  confess  judgment  for  a  sum  cer- 
tain ;  and  that  the  justice  having,  with  the  assent  of  the  defendant, 
made  a  memorandum  of  the  terms,  entered  it  on  his  docket  at  his 
return  home;  the  court  instructed  the  jury  that  a  judgment  thus 
rendered  is  illegal  and  invalid. 

A  court  is  defined  to  be  a,  place  where  justice  is  judicially  admin- 
istered ;  and  a  justice  of  the  peace,  being  a  judicial  officer,  must 
necessarily  have  his  court  or  place  of  administering  justice.  That 
the  matter  has  been  so  regarded  by  the  legislature,  is  clear  from  the 
Act  of  Assembly  by  which  he  is  forbidden  to  keep  his  "  stated 
office"  in  a  tavern.  It  is  difficult  to  conceive  of  the  office  of  a 
judge,  without  at  the  same  time  associating  with  it  the  idea  of  a 
place  for  the  performance  of  its  duties.  The  judgment  was,  how- 
ever, actually  rendered  at  the  justice's  office.  But  were  the  parties 
before  him  there?  That  is  not  pretended;  but,  it  is  said,  the  con- 
fession of  the  defendant  was  received  when  they  wore  actually  before 
him.  That  brings  the  argument  back  to  the  point  from  which  it 


20  SUPREME  COURT  [Pittsburgh 

[King  t>.  King.] 

started,  the  receiving  of  the  confession  being  as  much  a  judicial  act 
as  the  recording  of  it.  But  it  is  said  the  justice  acted  under  a  pre- 
vious authority.  It  has  been  determined,  however,  that  a  warrant 
of  attorney,  which  is  quite  as  operative  as  a  parol  authority,  is  alto- 
gether insufficient.  The  Act  of  Assembly  which  gives  him  a  quali- 
fied jurisdiction,  requires  the  parties  to  be  before  him  ;  and  the 
abuses  that  might  otherwise  be  practised,  are  sufficiently  obvious  to 
require  him  to  be  held  to  the  letter  of  his  authority.  In  the 
instance  before  us,  the  defendant  disputed  the  correctness  of  the 
entry  at  the  moment  it  was  shown  to  him.  Had  he  been  present 
•when  it  was  made  there  would  have  been  either  no  cause  or  else  no 
room  for  cavil. 

The  judgment  below  is  therefore  to  be  affirmed;  but  the  effect 
of  it  is  not  so  easily  determined.  The  verdict  has  not  disposed  of 
the  demand,  but  merely  of  the  original  judgment.  By  agreeing  to 
put  this  matter  in  issue  on  the  trial  of  the  scire  facias,  the  parties 
have  created  difficulties  which  perhaps  they  did  not  anticipate.  If 
the  proper  judgment  on  the  verdict  be  that  the  original  judgment 
be  reversed  or  vacated,  then  the  scire  facias  is,  in  substance,  a  writ 
of  error  on  the  part  of  the  defendant,  who,  in  contemplation  of  law, 
demands  nothing  by  the  writ ;  and  in  giving  effect  to  the  agree- 
ment of  the  parties,  I  am  unable  to  see  how  we  can  escape  from 
giving  it  this  preposterous  effect.  I  am  not  even  yet  certain  that 
•we  ought  not  to  reverse  it  for  the  irregularity,  and  leave  the  defend- 
ant to  start  a  second  time  from  the  proper  point,  whence  his  course 
would  be  a  plain  one.  A  transcript  entered  on  the  docket  of  the 
Common  Pleas,  is,  as  regards  real  estate,  virtually  a  judgment  of 
that  court  (Brannan  v.  Kelley,  8  S.  &  II.  479),  consequently  it  may 
be  set  aside  on  motion,  with  or  without  an  issue,  where  it  has  been 
obtained  surreptitiously  ;  or  it  may  be  only  opened  to  let  the  party 
into  a  defence  when  he  has  missed  his  time  either  by  accident  or 
mistake  ;l  a  practice  extremely  beneficial  and  founded  on  the  chan- 
cery powers  which  our  courts  are  in  the  daily  habit  of  exercising. 
The  matters,  however,  which  constitute  the  defendant's  title  to 
relief,  must  have  existed  previous  to  or  at  the  time  of  rendering 
the  judgment.  If  they  be  subsequent,  the  court  will  not  interfere 
in  a  summary  way,  further  than  to  stay  the  execution,  because 
they  may  be  pleaded  to  a  scire  facias,  which,  if  it  be  necessary, 
the  plaintiff  will  be  ordered  to  bring.  A  neglect  of  this  distinction 
sometimes  produces  confusion  and  inconvenience,  and  at  all  times 
evinces  slovenliness  of  practice.  Here  the  matter  complained  of, 
existed  at  the  time  of  entering  the  judgment,  consequently  the 
proper  course  was  an  application  to  have  the  judgment  set  aside ; 
but  as  the  defendant  has  succeeded  by  an  irregular  course,  adopted 
it  would  seem  by  agreement,  he  is  entitled  only  to  the  advantages 

1   Contra,  Leacock  v.  White,  7  II.  495;  Boyd  c.  Miller,  2  Smith  431. 


Sept.  1829.]  OF  PENNSYLVANIA.  21 

[King  v.  King.] 

that  might  haue  been  obtained  in  a  regular  way.     The  original 
judgment  will  therefore  not  stand  in  the  way  of  a  fresh  action. 

Judgment  affirmed. 

Referred  to,  infra  252 ;  10  W.  102. 
Followed,  6  W.  296. 


Darrah  against  Warnoch. 


IN    ERROR. 


In  a  case  which  originated  before  a  justice  of  the  peace,  from  whose  judg- 
ment there  was  an  appeal  to  the  Common  Pleas,  where  a  verdict  and 
judgment  was  rendered  for  a  sum  exceeding  the  jurisdiction  of  the  justice, 
this  court  affirmed  the  judgment  upon  the  plaintiff's  releasing  the  excess. 

Tins  writ  of  error  was  issued  to  the  Court  of  Common  Pleas  of 
Beaver  county,  upon  the  return  of  which,  the  record  showed  the 
proceedings  in  a  suit,  which  originated  before  a  justice  of  the  peace, 
wherein  James  Warnoch  was  plaintiff,  and  Robert  Darrah  was 
defendant.  It  was  brought  to  recover  the  amount  of  a  judgment, 
which  the  defendant  Darrah,  had  had  against  one  Johnston,  and 
upon  which  he  received  the  money  from  the  defendant  Johnston, 
after  he  had  transferred  it  to  the  plaintiff  in  this  suit,  James 
Warnoch. 

On  the  28th  July  1827,  the  justice  rendered  judgment  for  the 
plaintiff  for  $83.62*  debt,  and  $1G.37£  interest,  making  $100; 
from  which  judgment  the  defendant  appealed.  A  declaration  was 
filed  containing  two  counts,  the  first  a  special  one,  and  the  second 
for  money  had  and  received.  Pleas,  non  aasumpsit  infra  sex  annos, 
and  payment  with  leave,  &c.  Replication  that  he  did  assume 
within  six  years,  and  did  not  pay.  Issues. 

On  the  15th  January  1828,  a  verdict  and  judgment  were  ren- 
dered for  the  plaintiff  for  $114.99. 

The  error  assigned  in  this  court  was  that  the  cause  of  action  was 
not  within  the  jurisdiction  of  a  justice  of  the  peace,  the  recovery 
being  for  more  than  $100,  and  interest  thereon. 

Fetterman,  for  the  plaintiff  in  error. — The  law  is  well  established 
that  it  is  error  to  institute  a  suit  before  a  justice,  if  the  cause  of 
action  exceeds  his  jurisdiction:  Hinds  v.  Willis,  13  S.  &  R.  214  ; 
Moore  v.  Wait,  1  Binn.  219;  Owen  r.  Shelhamer,  3  Id.  4f> ; 
Laird  v.  McConachy,  3  S.  &  R.  290.  The  verdict  and  judgment 
in  the  Common  Pleas,  were  rendered  for  $114.99.  within  six 
months  of  the  time  when  the  judgment  of  the  justice  was  entered; 
by  which  it  is  manifest  that  the  cause  of  action  when  the  suit  was 
instituted,  exceeded  the  jurisdiction  of  the  justice. 


22  SUPREME  COURT  [Pittsburgh 

[Darrah  v.  Warnoch.] 

Forward  and  Moore,  for  defendant  in  error. — In  the  case  of 
McEntire  v.  McElduff,  1  S.  &  11.  19,  this  court  decided,  that  if 
the  judgment  of  a  justice  be  for  a  sum  within  his  jurisdiction,  and 
on  an  appeal  to  the  Common  Pleas,  judgment  be  given  for  a  sum 
above  his  jurisdiction,  the  judgment  of  that  court  shall  not  be 
arrested,  unless  it  appear  that  the  cause  of  action  was  different. 
See  also  McKinley  v.  McCalla,  5  Binn.  600. 

The  jury  had  it  in  their  power,  and  might  have  given  something 
to  the  plaintiff',  as  damages  to  compensate  him  for  rexation,  and  to 
cover  the  expenses  of  the  appeal. 

Fetterman,  in  reply. — In  the  case  of  Kingston  v.  Lee  (not 
reported),  this  court  reversed  the  judgment,  because  the  damages 
laid  in  the  declaration  exceeded  the  jurisdiction  of  the  justice,  be- 
fore whom  the  suit  originated. 

This  was  an  action  of  assumpsit,  and  there  could  have  been  no 
damages  allowed  beyond  the  interest  of  the  claim. 

PER  CURIAM. — The  case  is  with  the  plaintiff,  both  on  principle 
and  authority.  As  regards  the  cause  of  action,  the  proceedings  on 
appeal  are  not  de  novo  ;  and  the  plaintiff  can  recover  no  more  than 
he  might  have  recovered  before  the  justice.  A  judgment  for  more 
would  be  decisive  cither  that  the  action  was  improperly  commenced 
or  improperly  prosecuted.  A  plaintiff  may  undoubtedly  remit  a 
part  of  his  demand,  to  bring  the  residue  within  the  jurisdiction  of 
a  justice,1  but  having  done  so,  he  must  proceed  consistently,  and 
cannot  set  up  on  the  appeal  the  part  that  he  had  previously  aban- 
doned. So  that  when  the  judgment  on  the  appeal  is  for  a  greater 
sum  than  could  have  been  recovered  before  the  justice,  it  involves 
the  plaintiff  in  the  dilemma  either  of  having  sued  for  too  much 
originally,  or  of  having  recovered  what  he  had  previously  released. 
But  as  he  might  have  released  the  excess  below,  and  as  there  is  an 
increasing  liberality  in  courts  of  error,  we  think  it  reasonable  to 
afford  him  an  opportunity  to  do  so  here. 

The  plaintiff  instantly  released  the  excess  at  the  bar,  and  the 
judgment  was  affirmed. 

1  Contra,  1  Wr.  390;  23  Smith  429-431. 


Sept.  1829.]  OF  PENNSYLVANIA.  23 


Johnston  against  Perkins. 


IN    ERROR. 


A.  brings  an  action  of  assumpsit  before  a  justice  of  the  peace  againet  B., 
and  recovers  a  judgment  for  a  certain  sum,  from  which  B.  appeals;  the 
cause  being  afterwards  tried  in  the  Common  Pleas,  a  verdict  and  judgment 
was  rendered  in  favor  of  A.  for  the  same  sum  :  Held,  that  A.  was  entitled  to 
recover  his  costs  since  the  appeal. 

THIS  record  was  returned  upon  a  writ  of  error  to  Crawford 
county. 

James  \V.  Perkins  brought  a  suit  before  a  justice  of  the  peace 
against  James  Johnston,  and  recovered  a  judgment  on  the  27th 
March  1824,  for  $15  ;  from  which  Johnston  appealed.  The  cause 
was  afterwards  tried  in  the  Common  Pleas,  and  on  the  loth  Novem- 
ber 1825,  a  verdict  was  rendered  for  the  plaintiff  for  $15.  A  mo- 
tion was  then  made  that  judgment  should  be  entered  without  costs  ; 
which  the  court  on  argument  dismissed,  and  entered  judgment  gen- 
erally for  costs.  This  was  assigned  for  error  in  this  court. 

Selden,  for  plaintiff  in  error.  —  The  defendant  obtained  a  more 
favorable  judgment  than  that  of  the  justice,  because  if  the  interest 
to  which  the  plaintiff  would  be  entitled  was  added,  the  sum  would 
be  reater  than 


Derrickson,  for  defendant  in  error,  was  stopped  by  the  court. 

PER  CURIAM.  —  We  cannot  say  that  any  part  of  the  judgment 
was  made  up  of  interest  since  the  appeal,  or  that  the  appellant  suc- 
ceeded to  the  amount  of  a  farthing.  The  interest  being  a  small 
matter,  the  plaintiff  may  have  abandoned  it  :  and  although  a  con- 
trary presumption  might  be  made  to  support  a  judgment,  it  cannot 
to  reverse  one.  The  judgment  for  costs  is  not  only  possibly,  but 
probably  right  ;  and  we  are  not  to  reverse  on  suspicion  of  error. 

Judgment  affirmed. 


24  SUPREME  COURT  [Pittsburgh 


Elliott  against  Callan. 

If  one  who  is  about  to  receive  the  assignment  of  a  single  bill,  call  upon 
the  payer  to  know  whether  he  will  pay  the  money,  and  is  informed  by  him 
that  he  will,  he  cannot  afterwards  set  up  any  defence  against  the  payment 
of  the  money  to  the  assignee,  which  existed  previous  to  such  declaration. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Indiana  county. 

The  plaintiff  in  error  was  the  plaintiff  below.  On  the  8th  July 
1822,  the  defendant,  James  Callan,  appeared  in  person  and  confessed 
judgment  to  the  plaintiff,  James  Elliott,  for  the  use  of  Daniel  Stan- 
ard,  for  the  sum  of  $336.37.  On  the  26th  September  1826,  the 
defendant  obtained  a  rule  to  show  cause  why  the  judgment  should 
not  be  opened  and  he  let  into  a  defence  ;  which  on  the  17th  March 
1827,  was  made  absolute.  Upon  the  trial  of  the  cause,  the  plain- 
tiff gave  in  evidence  the  single  bill  upon  which  the  suit  was  founded, 
for  §300,  dated  Cth  March  1820,  payable  1st  July  1822,  with  inter- 
est from  the  1st  July  1821,  together  with  the  transfer  thereof  to 
Daniel  Stanard.  It  was  admitted,  that  the  consideration  of  the 
said  single  bill  was  a  conveyance  of  two  out-lots  in  the  borough  of 
Indiana,  Nos.  1  and  2,  by  James  Elliott  and  wife,  to  James  Callan. 

The  defendant  then  gave  in  evidence  a  deed  from  James  Elliott 
and  wife  to  James  Callan,  dated  6th  March  1820,  for  out-lots  Nos. 
1  and  2;  and  also  the  exemplification  of  a  mortgage  from  James 
Elliott  and  wife  to  Joseph  Brounson,  executor  of  William  Smith, 
deceased,  dated  22d  November  1819,  and  recorded  the  15th  May 
1820,  within  six  months  from  its  date.  It  also  appeared  that  this 
mortgage  was  given  to  secure  the  payment  of  a  bond  which  bore 
even  date  therewith,  conditioned  for  the  payment  of  $242.51,  to  the 
said  Joseph  Brounson,  by  the  said  James  Elliott  and  Joshua  Mar- 
lin,  who  was  his  security. 

On  the  19th  February  1822,  James  Callan  and  wife  conveyed 
the  said  two  lots  to  Joshua  Marlin  ;  and  Joshua  Marlin  and  wife,  by 
deed  dated  the  29th  January  1823,  conveyed  the  same  to  Thomas 
Sharp. 

William  Banks,  Esq.,  was  then  called  as  a  witness,  and  testified 
that  the  bond  of  James  Elliott  and  Joshua  Marlin  had  been  sent  to 
him  for  collection  ;  that  it  was  the  same  money  for  which  the  mort- 

fage  had  been  given  ;  that  Elliott  was  insolvent,  and  he  applied  to 
larlin  for  payment,  who  at  first  refused,  because  Brounson  had  not 
entered  up  the  mortgage,  as  he  alleged  he  should  have  done  ;  but 
afterwards  he  paid  the  money,  and  Mr.  Banks,  by  virtue  of  a  power 
of  attorney,  entered  satisfaction  on  the  margin  of  the  record  ef  the 
mortgage,  on  the  10th  of  August  1827. 


Sept.  1829.]  OF  PENNSYLVANIA.  25 

[Elliott  v.  Callan.] 

The  plaintiff  then  called  James  Elliott  as  a  witness,  who  said: 
"  Daniel  Stanard  was  an  attorney  of  this  court,  and  had  several 
claims  against  me  for  collection,  to  the  amount  of  $300  or  $400.  I 
told  him  I  had  a  single  bill  on  James  Callan,  I  would  give  him  in 
payment,  if  he  would  take  it ;  he  said  he  would  agree  to  take  it, 
provided  Callan  was  agreed  to  it.  I  then  went  to  Mr.  Callan,  and 
asked  him  if  he  had  any  objections  to  my  transferring  his  single  bill 
to  Mr.  Stanard,  and  told  him  that  perhaps  Mr.  Stanard  would  give 
him  more  time  than  I  could,  as  I  was  pressed.  Mr.  Callan  tlien 
came  with  me  to  Mr.  Stanard,  and  in  his  presence  he  agreed  that  I 
should  assign  the  single  bill  to  Mr.  Stanard,  and  said  he  had  no 
objections,  and  that  he  would  pay  it ;  my  impression  was  that  Mr. 
Stanard  gave  me  receipts  on  the  docket.  I  know  he  released  me 
from  the  payments  of  money  ;  he  never  called  on  me  since.  One 
case  was  Nourse,  of  Baltimore ;  and  McKinstry  was  another  case ; 
I  do  not  think  I  ever  told  Mr.  Stanard  of  the  mortgage ;  Mr.  Stan- 
ard agreed  to  take  the  single  bill  as  a  payment  of  the  claims  which 
he  had  against  me,  and  settled  with  me  for  the  whole  amount  thereof. 
I  paid  him  the  balance  in  money  about  a  year  afterwards ;  Mr. 
Marlin  was  only  my  bail  in  the  bond.  I  do  not  recollect  that  I 
told  Callan  of  the  mortgage  at  the  time  I  sold  to  him.  The  single 
bill  was  assigned  in  Callan's  presence  to  Mr.  Stanard." 

The  plaintiff's  counsel  requested  the  court  to  instruct  the  jury, 
that  if  they  believe  that  James  Callun,  at  and  immediately  before 
the  assignment,  knew  that  Daniel  Stanard  was  about  to  purchase 
and  take  an  assignment  of  said  single  bill,  and  did  then  and  there 
inform  said  Daniel  Stanard  that  he  was  willing  he  should  purchase 
and  take  such  assignment,  and  that  he  would  pay  the  same,  or  had 
no  objection  to  make  against  the  payment  of  the  same  ;  and  that  in 
consequence  of  said  declaration,  said  Daniel  Stanard  did  then  and 
there  purchase  and  take  an  assignment  of  said  single  bill,  bona  fide, 
and  for  a  valuable  consideration  ;  said  James  Callan  cannot  in  this 
action  set  up  as  a  defence  the  fact  of  an  existing  mortgage,  given 
by  the  said  James  Elliott  on  the  premises,  which  was  the  considera- 
tion of  the  said  single  bill. 

2d.  If  the  jury  believe  that  Joshua  Marlin,  on  the  29th  July  1823, 
sold  the  mortgaged  premises  to  Thomas  Sharp,  and  afterwards,  on 
the  14th  June  1827,  paid  the  amount  of  the  money  due  thereon  to 
the  mortgagee,  who  by  an  attorney  in  fact  entered  satisfaction  upon 
the  margin  of  the  record  of  the  said  mortgage,  on  the  10th  August 
1827,  the  defendant  cannot  set  up  said  mortgage  as  a  defence  in 
this  suit  to  the  payment  of  his  single  bill. 

Whereupon  the  court  (Young,  president)  charged  the  jury  as  fol- 
lows :  "  The  defence  to  the  recovery  of  the  bond  in  question  is  what 
is  usually  termed  an  equitable  one,  founded  on  an  alleged  failure 
of  the  consideration  to  the  extent  of  $242.51,  with  interest  thereon 
from  the  1st  of  March  1823.  It  appears  that  James  Elliott  exe- 


26  SUPREME  COURT  [Pittsburgh 

[Elliott  v.  Callan.] 

cutcd  a  bond,  with  Joshua  Marlin  as  his  surety,  and  a  mortgage 
dated  22d  November  1819,  to  Joseph  Brounson,  on  two  out-lots,  for 
securing  the  payment  of  that  debt ;  he  afterwards  sold  and  conveyed 
those  out-lots  to  the  defendant,  with  covenant  of  general  warranty, 
by  deed  dated  6th  March  1820.  The  mortgage  was  not  then 
recorded,  but  was  within  six  months  from  its  date,  and  became  a 
lien  on  the  property  from  that  date ;  it  was  an  encumbrance  which 
Elliott  was  bound  to  remove;  and  having  failed  in  this,  it  is  admitted 
by  the  counsel  for  the  real  plaintiff,  Mr.  Stanard,  that  the  defence 
would  have  been  good  as  against  Elliott,  but  he  contends  it  is  not 
available  against  his  assignee,  who,  it  is  alleged,  purchased  the  bond 
bona  fide,  for  an  adequate  consideration,  and  with  the  knowledge 
and  consent  of  the  defendant  himself.  So  far  as  it  respects  the  last 
matter,  it  depends  entirely  on  the  testimony  of  Elliott,  whose  bias 
appears  pretty  strong  in  favor  of  the  assignee,  and  whose  confidence 
in  him  seems  also  to  have  been  unlimited ;  he  made  the  assignment 
in  satisfaction,  as  he  stated,  of  various  claims  on  him,  for  moneys  he 
had  collected  as  sheriff  for  Mr.  Stanard's  clients,  without  taking  a 
receipt  for  any  one  of  them  ;  his  first  impression  was  that  Mr.  Stan- 
ard entered  receipts  on  the  docket ;  towards  the  conclusion  of  his 
testimony  he  stated  that  Mr.  Stanard  -generally  receipted  on  the 
docket,  as  he,  the  witness,  understood.  There  is  no  evidence  of 
any  receipt,  and  not  even  of  the  memorandum  which  was  taken  of 
the  claims,  at  the  time  of  this  transaction :  taking  the  whole  of  it 
into  view,  with  his  concealment  of  the  mortgage,  on  that  occasion, 
and  so  far  as  it  appears  on  every  other,  the  credit  of  the  witness,  to 
say  the  least  of  it,  is  not  superior  to  exceptions.  That  subject,  how- 
ever, is  for  your  consideration,  rather  that  that  of  the  court.  If 
you  are  not  satisfied  with  the  relation  he  has  given  ;  if,  in  fact,  you 
believe  no  valuable  consideration  passed  from  Stanard  to  Elliott  at 
the  time  of  the  assignment,  the  weight  of  the  reasoning  founded  on 
it  falls  to  the  ground.  But  admitting  a  valuable  consideration  did 
pass,  unless  you  are  further  satisfied  that  when  (as  it  appears  from 
Elliott's  testimony)  the  defendant  agreed  to  the  assignment,  which 
was  executed  in  his  presence,  this  ought  not  to  be  considered  as  an 
undertaking  to  pay  the  bond  at  all  events,  if  he  was  then  ignorant 
of  the  mortgage.  But  it  is  said  that  Callan  said  he  would  pay  it ; 
Elliott  being  called  again,  stated  that  Callan  did  so  say.  Were  you 
to  believe  this,  you  ought  to  take  into  consideration  the  circum- 
stances under  which  the  declaration  was  made.  There  is  certainly 
no  testimony  of  his  having  been  then  cognisant  of  the  mortgage,  nor 
until  some  short  time  before  the  motion  at  September  term  1826, 
for  opening  the  judgment,  which  the  defendant  had  confessed. 

"  Mr.  Banks  stated  it  was  about  a  year  before  he  received  the 
money,  which  was  on  the  27th  of  June  1827 ;  that  the  bond  was 
transmitted  to  him  from  Brounson  in  Baltimore ;  the  existence  of 
the  mortgage  was  then  but  little  known  to  any  one;  and  the  first 


Sept  1829.]  OF  PENNSYLVANIA.  27 

[Elliott  P.  Callan.] 

notice  of  it  seems  to  have  been  communicated  by  Mr.  Marlin,  who 
•was  alarmed  for  fear  the  mortgage  had  not  been  put  on  record  ; 
this  led  Mr.  Banks  to  search,  and  having  found  it  "recorded,  Mr. 
Sharp,  who  had  purchased  from  Marlin,  became  also  uneasy  ;  his 
willingness  to  the  making  of  the  assignments  (or  as  it  is  otherwise 
called  in  the  paper  on  which  the  court  is  requested  to  instruct  the 
jury),  his  making  no  objection  to  the  payment  of  the  same,  or  even 
saying  he  would  pay  it,  if  ignorant  of  the  mortgage,  ought  not 
under  such  circumstances  to  avoid  the  defence  now  set  up.  As  to 
the  remaining  point,  I  am  of  opinion  that  Joshua  Marlin,  having 
sold  the  mortgaged  property  to  Thomas  Sharp  with  general  war- 
ranty, was  justified  in  paying  off  the  encumbrance,  to  release  him- 
self from  an  action  at  the  suit  of  Sharp.  An  action  on  the  mort- 
gage (which  was  in  contemplation),  would  have  been  the  conse- 
quence, unless  the  money  had  been  paid,  as  has  been  testified  by 
Mr.  Banks.  These  legal  proceedings  would  have  been  attended 
with  costs  and  expenses,  which  it  was  the  interest  of  all  parties  to 
avoid,  and  particularly  that  of  Mr.  Marlin.  It  seems  there  is  a 
balance  due  on  the  bond  in  question,  after  deducting  the  principal 
and  interest  on  the  mortgage ;  that  balance  the  plaintiff  is  entitled 
to  recover.  Having  given  our  sentiments  upon  the  evidence,  and 
our  opinion  on  the  questions  of  law  proposed,  the  whole  is  now  left 
to  your  consideration. 

In  this  court  the  following  errors  were  assigned  to  the  charge  of 
the  court  below  to  the  jury  : 

1st.  In  charging  the  jury  that  "admitting  a  valuable  considera- 
tion did  pass  from  Stanard  to  Elliott  for  the  assignment  of  the  sin- 
gle bill,  and  the  defendant  agreed  to  the  assignment,  which  was 
executed  in  his  presence ;  yet  this  ought  not  to  be  considered  as  an 
undertaking  to  pay  at  all  events,  if  he  was  then  ignorant  of  the 
mortgage." 

2d.  In  charging  the  jury,  "  that  the  willingness  of  the  defendant 
to  the  making  of  the  assignment,  or  his  making  no  objection  to  the 
payment  of  the  single  bill,  if  ignorant  of  the  mortgage,,  ought  not, 
under  such  circumstances,  to  avoid  the  defence  then  set  up." 

Foster  and  Baldwin,  for  plaintiff  in  error. — If  an  obligor  assents 
to  the  assignment  of  his  bond,  without  giving  notice  that  he  has  a 
defence  against  it,  he  is  concluded,  and  must  pay  it  to  the  assignee 
under  all  circumstances  :  Games  v.  Field  et  al.,  2  Yeates  541 ; 
Ludwick  v.  Croll,  2  Id.  56f> ;  Davis  v.  Barr,  9  S.  &  R.  137; 
Weaver  v.  McCorkle,  14  Id.  304.  If  an  assignee  be  induced  to 
purchase  a  bond,  in  consequence  of  representations  made  by  the 
obligor  that  he  has  no  defence,  or  is  willing  to  pay,  the  obligor  can- 
not set  up  against  the  assignee  any  equity,  of  which  he  might  have 
availed  himself  against  the  obligee,  even  though  such  communica- 
tions were  not  made  directly  to  the  assignee,  but  merely  communi- 


28  SUPREME  COURT  [Pittsburgh 

[Elliott  0.  Callan.] 

cated  to  another  in  his  hearing :  McMullen  for  use  v.  Wenner,  16 
S.  &  11.  18 ;  1  Wash.  R.  299.  The  confession  of  a  judgment  by 
Callan  was  a  new  promise  to  the  assignee. 

White  and  Alexander,  for  defendant  in  error. — It  is  admitted, 
that  between  Callan  and  Elliott  the  defence  to  the  payment  of  the 
bond  would  be  a  valid  and  substantial  one ;  and  this  assignment 
amounts  to  nothing  more  than  a  transfer  of  the  single  bill,  by  El- 
liott, who  was  a  sheriff  of  the  county,  to  Mr.  Stanard,  an  attorney 
of  the  same  court,  for  the  security  of  his  clients,  who  were  creditors 
of  the  sheriff;  it  is  not  therefore  a  case  of  a  bona  fide  purchase  with 
the  assent  of  the  obligor  ;  and  therefore  the  authorities  cited  for  the 
plaintiff  in  error  are  not  applicable.  The  whole  aspect  of  this  case 
shows  that  no  valuable  consideration  passed  from  Stanard  to  Elliott, 
but  that  the  single  bill  was  transferred  as  a  collateral  security.  In 
the  case  of  Burke  v.  Allen,  3  Yeates  356,  it  is  determined  that 
although  a  new  promise  be  made  to  the  assignee,  yet  "  ignorantia 
juris  excusat." 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — In  the  court  below  this  was  an  action  of  debt,  on  a 
single  bill,  given  by  James  Callan  to  James  Elliott,  dated  the  Gth 
of  March  1820,  payable  the  1st  of  July  1822,  and  equitably  as- 
signed to  Daniel  Stanard,  the  15th  of  June  1822.  On  the  8th  July 
1822,  the  defendant  in  person  confessed  a  judgment  to  the  plaintiff 
for  3336.37.  On  the  20th  September  1826,  a  rule  to  show  cause 
why  the  judgment  should  not  be  opened,  was  obtained,  which  on  the 
17th  of  March  1827,  was  made  absolute,  the  judgment  to  remain  a 
lien  in  the  mean  time.  The  cause  was  tried  on  the  24th  of  Decem- 
ber 1828,  when  a  verdict  and  judgment  were  rendered  for  the  de- 
fendant. 

On  the  trial  it  was  admitted  that  the  single  bill  has  been  given 
in  part  of  the  consideration  of  two  out-lots  in  the  town  of  Indiana, 
sold  by  Elliott  to  Callan,  and  the  record  of  a  mortgage,  dated  the 
22d  of  November  1819,  duly  recorded,  from  Elliott  to  Joseph 
Brounson,  executor  of  William  Smith,  deceased,  on  the  same 
lots,  was  given  in  evidence  by  the  defendant,  who  contended  that 
he  was  not  liable  to  pay  the  bill,  as  the  consideration  of  it  had 
failed. 

The  plaintiff  then  proved  by  James  Elliott,  "  that  he  went  to 
Callan,  and  asked  him  if  he  had  any  objection  to  a  transfer  of 
his  bill  to  Daniel  Stanard ;  that  on  this  Callan  went  with  him  to 
Stanard,  and  in  the  presence  of  Stanard  agreed  that  he  should 
assign  the  bill  to  Stanard,  and  said  he  had  no  objections,  and  would 
pay  it." 

Before  the  cause  was  submitted  to  the  jury,  the  plaintiff's  counsel 
presented  certain  propositions  to  the  court,  and  requested  them  to 


Sept.  1829.]  OF  PENNSYLVANIA.  29 

[Elliott  v.  Callan.] 

instruct  the  jury,  "  That  if  they  believed  that  James  Callan,  at  and 
immediately  before  the  assignment,  knew  that  Daniel  Stanard  was 
about  to  purchase  and  take  an  assignment  of  said  single  bill,  and 
did  then  and  there  inform  said  Daniel  Stanard,  that  he  was  willing 
he  should  purchase  and  take  such  assignment,  and  that  he  would 
pay  the  same,  or  had  no  objections  to  make  against  the  payment  of 
the  same,  and  that  therefore  in  consequence  of  said  declaration, 
said  Daniel  Stanard  did  then  and  there  purchase  and  take  an  assign- 
ment of  said  single  bill,  bona  fide,  and  for  a  valuable  consideration, 
said  James  Callan  cannot  in  this  action  set  up  as  a  defence  the  fact 
of  an  existing  mortgage  given  by  James  Elliott,  on  the  premises, 
for  part  payment  of  the  purchase-money  of  the  premises,  for  which 
said  single  bill  had  been  given."  The  court  thereupon  instructed 
the  jury,  "That  admitting  a  valuable  consideration  did  pass,  unless 
they  were  further  satisfied,  that  when  (as  it  appears  from  Elliott's 
testimony),  the  defendant  agreed  to  the  assignment,  which  was 
executed  in  his  presence,  this  ought  not  to  be  considered  as  an 
undertaking  to  pay  the  bond  at  all  events,  if  he  were  then  ignorant 
of  the  mortgage." 

And  the  court  further  instructed  the  jury,  that  "  his  willingness 
to  the  making  of  the  assignment  (or  as  it  is  otherwise  called  in  the 
paper  on  which  the  court  is  requested  to  instruct  the  jury),  his 
making  no  objections  to  the  payment  of  the  same,  or  even  saying 
he  would  pay  it,  if  ignorant  of  the  mortgage,  ought  not  under  such 
circumstances  to  avoid  the  defence  now  set  up."  To  this  charge 
the  plaintiff  excepted,  and  has  assigned  two  errors  arising  on  the 
same. 

If  any  principle  of  law  can  be  considered  as  settled,  or  ever  can 
remain  settled,  it  is  this,  that  the  assignee  of  a  bond  or  single  bill, 
takes  it  subject  to  all  objections  which  the  obligor  could  legally 
make.  He  comes  in  the  place  of  the  obligee,  and  cannot  stand  in 
a  different  or  better  situation.  So  early  as  1770,  in  the  case  of 
Whaler,  assignee  of  Baynton,  v.  Iluzes'  executors,  we  find  in  our 
earliest  reports,  1  Dall.  23,  this  principle  laid  down  by  an  able 
judge  and  great  lawyer.  And  in  our  latest  books  of  reports,  14 
S.  <fc  R.  306,  the  same  principle  is  again  recognised ;  and  in  a  still 
later  case,  McMullen  v.  Wenner,  reported  in  16  S.  «Jc  It.  18,  it  was 
declared  that  the  assignee  of  a  bond,  whether  the  assignment  be 
legal  or  equitable,  takes  it  at  his  own  peril,  subject  to  every  defal- 
cation which  might  have  been  made  against  the  obligee  by  the 
obligor,  at  the  time  of  the  assignment.  But  there  is  an  exception. 
If  the  assignee  previous  to  the  assignment,  applies  to  the  obligor, 
informs  him  he  is  about  to  take  an  assignment  of  the  bond,  and 
inquires  of  him  if  the  money  the  bond  calls  for  was  due,  and  the 
obligor  declares  it  is,  he  is  estopped  from  denying  it  afterwards; 
for  the  obligor  by  such  or  similar  declarations,  promotes  and  en- 
courages the  assignment,  and  thereby  precludes  himself  from  the 


30  SUPREME  COURT  [Pittsburgh 

[Elliott  r.  Callan.] 

benefit  of  the  right  he  would  have  h:ul  against  the  bond  originally. 
His  admissions  operate  virtually  as  a  new  contract  between  himself 
and  the  assignee.  This  exception  is  as  well  established  as  the  rule 
itself  in  the  eases  above  referred  to,  and  in  many  more.  The  case 
cited  by  the  plaintiff's  counsel  (Mr.  Baldwin},  from  Wash.  R.  297, 
Buchner  et  al.  r.  Smith  et  al.,  is  strong,  perhaps  stronger  than  the 
one  under  consideration,  and  in  my  opinion  is  decisive  of  it.  There 
a  bond  had  been  given  for  a  gambling  debt,  I  believe  for  twenty- 
five  thousand  pounds  of  tobacco.  This  bond  was  afterwards  assigned, 
and  an  action  brought  upon  the  bond,  and  judgment  confessed  by 
the  defendant  after  lie  came  of  age.  The  assignee  proved  that  he 
was  induced  to  accept  of  an  assignment  of  the  bond  by  the  obligor, 
who  assured  him  that  the  bond  should  be  punctually  paid.  And 
the  court  there  said,  "  the  principal  objection  is,  that  this  is  a 
gaming  debt,  contracted  by  an  infant,  which  no  subsequent  act  of 
his,  nor  any  transfer,  could  make  valid. 

It  is  in  general  true,  that  an  assignee  of  a  bond  of  this  sort,  can 
be  in  no  better  situation  than  the  obligee,  and  the  cases  cited  at  the 
bar  sufficient!^  establish  the  point.  But  the  present  case  is  very 
different  upon  principle  from  those  cases,  and  that  difference  is  pro- 
duced by  the  obligor's  conduct  who,  by  his  assurances  of  payment, 
induced  the  assignee  to  receive  an  assignment  of  it.  He  not  only 
concealed  from  him  legal  objections  to  the  bond,  but  afterwards 
assumed  to  pay  it,  and  when  sued,  voluntarily  confessed  a  judg- 
ment." This  case  was,  in  a  great  measure,  afterwards  recognised 
by  the  court  in  Elliotts  executors  v.  Smack,  3i'0  of  the  same  book. 

On  these  principles,  we  think  the  court  below  erred,  when  they 
instructed  the  jury,  that  admitting  a  valuable  consideration  did  pass 
from  Stanard  to  Elliott,  for  the  assignment  of  the  single  bill,  unless 
the  jury  were  also  satisfied,  that  when  the  defendant  agreed  to  the 
assignment,  winch  was  executed  in  his  presence,  it  ought  not  to  be 
considered  as  an  undertaking  to  pay  at  all  events,  if  he  were  then 
ignorant  of  the  mortgage.  And  they  moreover  erred  in  informing 
the  jury  that  the  willingness  of  the  defendants,  to  the  making  of 
the  assignment,  his  making  no  objections  to  the  payment  of  the 
same,  or  even  saying  he  would  pay  it,  if  ignorant  of  the  mortgage, 
ought  not,  under  such  circumstances,  to  avoid  the  defence  set  up. 

Stanard,  the  equitable  assignee,  on  the  loth  of  June  lb-2,  before 
he  took  an  assignment  of  the  single  bill,  and  before  it  was  due,  asked 
the  obligor  if  he  was  satisfied,  he  should  purchase  and  take  an 
assignment  of  the  same,  and  whether  he  had  anv  objection  to  make 
against  its  payment ;  he  replied,  he  was  satisfied  such  assignment 
should  be  made,  and  had  no  objection  to  the  payment  thereof,  and 
moreover  said  he  was  desirous  Stanard  should  purchase  and  take  an 
assignment.  I  would  :isk,  what  could  Stanard  do  more?  All  pre- 
cedent measures  were  pursued  before  the  transfer  was  accepted  by 
him  ;  the  party  who  sealed  and  delivered  the  instrument  was  called 


Sept.  1829.]  OF  PENNSYLVANIA.  31 

[Elliot  v.  Callan.] 

on,  a  full  and  complete  opportunity  given  to  object,  if  he  had  any 
objections,  but  instead  of  objecting,  answers  that  he  is»satisfied, 
and  expresses  a  wish  that  Stanard  should  take  the  assignment.  It 
is  therefore  evident  that  the  assignee  was  induced  by  the  obligor  to 
take  the  single  bill,  and  part  with  his  money  for  it.  When  Stanard 
applied  to  the  debtor,  he  had  a  right  to  suppose  that  he  was  cog- 
nisant of  everything  which  had  given  birth  to  the  obligation,  and 
that  if  a  defence  to  it  existed,  he  could  and  would  inform  him  of  it ; 
for  this  purpose  he  made  the  application  to  him  ;  he  is  not  forbid- 
den by  the  objector  to  purchase,  but  on  the  contrary  is  encouraged 
to  do  so.  Under  such  circumstances,  the  obligor's  conduct,  whether 
it  proceeded  from  ignorance  or  design,  must  be  considered  as  an 
undertaking  to  pay.  If  there  be  a  hardship  in  the  matter  (for 
instance,  the  existence  of  a  previous  mortgage  unknown  to  the 
obligor,  as  is  alleged),  the  obligor  would  be  bound,  for  by  his  solemn 
assurances  of  payment,  he  induced  the  assignment ;  by  his  conceal- 
ment of  all  objections  to  the  bill,  he,  in  fact,  promised  anew  to  pay 
it,  and  when  sued,  voluntarily  confessed  a  judgment.  We  there- 
fore think  the  plaintiff  in  error  has  sustained  his  exceptions,  and 
that  the  judgment  of  the  Court  of  Common  Pleas  should  be  reversed, 
and  a  venire  facias  de  novo  awarded. 

HUSTOX,  J.,  agreed  to  the  general  principle,  but  thought  the 
facts  of  this  case  did  not  probably  come  within  it.  Here  it  was 
Elliott  who  went  to  the  defendant  to  procure  him  to  make  the  pro- 
mise to  Stanard.  Here  Elliott  received  nothing  from  Stanard  ;  he 
was  indebted  to  some  of  Stanard' a  clients,  and  assigned  this  bond 
in  full  for  their  use,  though  it  was  not  stated  so  to  be.  If  the  jury 
should  find  the  facts  to  be  so,  it  is  still  Elliott's  bond,  and  the 
money  when  collected,  goes  to  his  use  and  to  pay  his  debts ;  and  in 
that  case  the  principle  would  apply,  and  the  defence  was  not'a  good 
one. 

Judgment  reversed,  and  venire  facias  de  novo  awarded. 

Followed,  infra  479. 


32  SUPREME  COURT  [Pittsburgh 


Chess  against  Chess  et  al. 

Declarations  of  a  grantor  made  subsequently  to  the  execution  of  a  deed, 
cannot  he  given  in  evidence  to  invalidate  that  deed. 

But  when  the  question  to  be  determined  by  the  jury  is  whether  the  grantor 
was  sane  or  insane,  at  and  about  the  time  the  deed  was  executed,  it  is 
competent  to  give  in  evidence  his  declarations  made  soon  after  the  execution 
of  the  deed,  for  the  purpose  of  proving  imbecility  of  mind. 

A  man's  neighborhood  is  co-extensive  with  his  intercourse  among  his  fellow 
citizens.  One  witness,  therefore,  testified  that  he  knew  the  general  character 
of  another  witness,  whose  character  was  in  issue,  but  he  did  not  know  his 
character  in  his  immediate  neighborhood.  It  is  competent  to  ask  the  witness 
whether  he  would  believe  him  on  his  oath. 

A  deed  procured  by  actual  fraud,  is  void,  and  cannot  be  confirmed  by 
subsequent  acts  or  declarations  of  the  grantor. 

A  delivery  is  essential  to  the  proper  and  legal  execution  of  a  deed,  and  that 
delivery  may  be  to  the  party,  to  one  authorized  by  the  party  to  receive  it,  or 
to  a  stranger  for  the  use  of  the  party  ;  but  the  placing  a  deed  on  record  by  the 
grantor,  is  not  an  absolute  delivery,  but  only  evidence  of  it,  of  which  the 
jury  may  judge. 

The  court  sustained  the  challenge  of  a  juror  on  the  ground  that  he  was 
subpoenaed  as  a  witness  to  impeach  the  credit  of  another  important  witness, 
who  was  to  give  evidence  in  the  cause  in  which  he  was  called  as  a  juror: 
which  was  held  to  be  no  error. 

THIS  was  an  action  of  ejectment  brought  to  recover  a  tract  of 
land  in  Allegheny  county,  and  was  tried  at  a  Circuit  Court  held  for 
that  county  by  Justice  Rogers. 

Both  plaintiff  and  defendants  were  children  of  William  Chess, 
deceased,  and  both  claimed  the  land  under  their  father — the  plain- 
tiff, by  a  deed  dated  the  14th  February  1823,  and  the  defendants 
as  heifs-at-law. 

It  was  contended  by  the  defendants,  that  the  deed  to  the  plaintiff, 
from  William  Chess,  his  father,  was  void,  in  consequence  of  the 
mental  incapacity  of  the  grantor  to  make  a  deed  on  the  14th  Feb- 
ruary 1H23.  and  that  it  was  obtained  by  fraud.  It  was  answered 
by  the  plaintiff  that  the  grantor  was  of  sound  mind  when  lie  made 
the  deed,  that  it  was  not  obtained  by  fraud,  and  that  subsequently 
to  its  date,  it  was  confirmed  by  acts  of  the  grantor. 

William  Kerr  was  called  as  a  juror,  and  objected  to  by  the  de- 
fendants, on  the  ground  that  he  was  a  witness  in  the  cause,  sub- 
poenaed by  the  plaintiff,  to  give  evidence  on  his  behalf;  and  who 
had  given  evidence  on  a  former  trial  as  to  a  material  matter.  The 
court  sustained  the  objection  ;  and  the  juror  when  sworn  as  a  wit- 
ness, testified  to  the  character  of  John  Ross,  another  witness,  whose 
veracity  was  impeached.  During  the  progress  of  the  cause,  the 
defendants  offered  to  give  in  evidence  the  declarations  of  William 
Chess,  respecting  the  deed  of  the  14th  February  1823,  to  his  son 


Sept.  1829.]  OF  PENNSYLVANIA.  03 

[Chess  v.  Chess.] 

the  plaintiff,  made  after  its  execution,  which  were  objected  to  by 
the  plaintiff,  but  admitted  by  the  court. 

The  following  is  the  substance  of  the  evidence  given  on  this 
subject: — 

William  Kerns  :  In  the  spring  of  1823,  a  short  time  before  his 
death,  old  William  Chess  came  to  my  house ;  he  sat  down  and 
looked  as  active  as  I  ever  saw  him  before.  We  walked  out  together, 
arid  he  asked  me  if  I  heard  what  his  son  John  had  done  to  him  ;  I 
told  him  no  ;  he  then  told  me  that  he  had  got  a  fall  from  his  horse,- 
and  John  was  taking  him  to  town  to  the  doctor's,  and  took  him  to 
sign  a  deed;  he  said  that  owing  to  the  fall  from  his  beast  he  was 
not  in  his  right  mind  when  he  signed  the  deed.  lie  also  stated  that 
John  was  to  give  him  some  property  in  town  in  exchange,  but  had 
not  done  so.  He  said  that  if  John  would  not  give  him  up  the  deed,  he 
would  compel  him  to  do  it.  By  giving  the  deed  to  John  he  wronged 
the  rest  of  his  family.  I  have  known  William  Chess  long  and  inti- 
mately, and  had  never  considered  him  of  unsound  mind. 

John  Ross :  In  April  or  May,  after  my  return  from  over  the 
mountains,  old  William  Chess  called  on  me,  and  told  me  he  had 
come  to  see  the  lease  I  had  written.  I  got  it  and  read  it  for  him. 
I  then  asked  him  the  reason  he  brought  his  family  into  so  many 
difficulties,  stating  that  on  the  13th  February  he  had  given  a  lease 
for  three  years  to  his  boys,  and  next  day  had  given  a  deed  for  part 
of  the  same  property  to  another  son,  who  had  brought  suit  to  dis- 
possess those  he  had  leased  to.  The  old  man  said  he  had  been 
deceived  by  John.  He  requested  a  copy  of  the. lease  to  show  to 
John,  and  said  that  then  John  would  give  up  the  deed.  On  the  7th 
May  he  called  on  me,  and  told  me  that  John  would  not  give  up 
the  deed,  and  requested  me  to  go  with  him  to  John,  and  get  him 
to  do  so. 

The  plaintiff  then  called  a  great  number  of  witnesses,  who  testi- 
fied that  the  general  character  of  John  Ross,  in  his  own  neighbor- 
hood, for  truth,  was  bad. 

The  defendants  then  called  witnesses  in  support  of  the  character 
of  John  Ross,  who  testified,  in  substance,  that  they  did  not  know 
his  character  in  his  own  neighborhood;  that  they  lived  two,  three 
and  four  miles  from  him,  and  had  little  intercourse  there  with  the 
neighbors  of  Ross ;  that  they  had  heard  his  character  spoken  of 
where  they  lived  and  elsewhere,  and  that  some  spoke  well  and  some 
ill  of  him. 

The  witnesses  were  then  asked  by  the  defendant's  counsel  whether 
they  would  believe  him  on  his  oath,  from  what  they  knew  of  his 
general  character. 

This  question  was  objected  to  by  the  plaintiff's  counsel,  but  the 
court  permitted  it  to  be  put,  and  the  witnesses  answered,  "As  far 
as  I  know  him,  I  would  believe  him." 

Other  witnesses  testified  k*  that  they  had  known  Ross  a  number 
1  P.  &  W.— 3 


34  SUPREME  COURT 

[Chess  r.  Chess.] 

of  years  —  lived  within  three  or  four  miles  of  him  ;  that  they  did  not 
know  his  character  for  truth  in  his  own  neighborhood  ;  that  they 
had  never  heard  it  spoken  of.  one  way  or  the  other."  To  whom 
the  court  permitted  the  same  question  to  he  put  and  answered,  upon 
objection  being  made  by  the  plaintiff. 

Other  points  arose,  which  will  sufficiently  appear  in  the  reasons 
assigned  for  a  new  trial,  and  the  opinion  of  the  court. 

A  verdict  was  rendered  for  the  defendants,  when  the  plaintiff 
moved  the  court  for  a  new  trial,  for  the  following  reasons  :  — 

1st.  That  there  was  error  in  admitting  evidence  of  the  declara- 
tions of  William  Chess,  the  grantor,  after  the  execution  of  the  deed 
in  question. 

Sd.  In  admitting  the  evidence  of  Samuel  Thompson,  Benjamin 
Darlington,  T.  B.  Dallas,  George  Evans  and  others,  in  relation  to 
the  credibility  of  John  Ross,  whose  general  character  had  been 
impeached  by  the  plaintiff,  and  of  whose  general  character  these 
witnesses  had  no  knowledge. 

'3d.  In  the  court  charging  the  jury,  that  if  the  deed  of  the  14th 
February  1828  was  invalid  at  that  time,  it  could  not  be  made  valid 
by  any  subsequent  act. 

4th.  In  the  court  taking  from  the  jury  the  consideration  of  the 
question,  whether  the  deed  of  the  14th  February  1823  was  con- 
firmed or  made  good  by  any  subsequent  act  of  confirmation,  or  by 
a  new  delivery  at  any  time  afterwards. 

oth.  In  charging  the  jury,  that  recording  the  deed  was  no  deli- 
very. but  only  evidence  of  it,  of  which  the  jury  were  to  judge. 

<jth.  In  sustaining  the  challenge  by  defendants'  counsel  of  Wil- 
liam Kerr,  a  juror,  on  the  sole  ground  that  he  was  a  witness  in  the 
case. 

Which  were  overruled  by  the  judge,  and  judgment  was  entered 
on  the  verdict,  from  which  the  plaintiff  appealed. 

In  this  court  the  cause  was  argued  by 


*'  and  Ii<iJ<Jirin,  for  appellant.  —  1st.  The  declarations  of  a 
grantor,  after  the  execution  of  a  deed,  cannot  be  given  in  evidence 
to  invalidate  that  deed.  And  if  there  be  any  reason  for  admitting 
evidence  of  the  declarations  of  a  testator  in  relation  to  a  will  made 
by  him,  that  reason  does  not  apply  to  the  case  of  a  deed  :  for  wills 
are  always  revocable  by  the  persons  who  make  them,  'but  deeds  are 
not.  A  will  is  only  consummated  by  the  death  of  the  testator,  but 
a  deed  is  consummated  by  delivery.  " 

2d.  A  witness  must  first  state  that  he  is  acquainted  with  the 
general  reputation  for  truth  of  the  person  whose  veracity  is  ques- 
tioned. before  he  can  be  asked,  or  permitted  to  answer,  the  question, 
whether  he  would  believe  him  on  his  oath.  The  law  is  well  laid 
down  on  the  subject  in  Kimmel  v.  Kimmel,  3  S.  &  II.  336; 
Wikc  r.  Lightncr,  11  Id.  19S-U;  Brindle  et  al.  v.  Mcllvaine,  10 


Sept.  1829.]  OF  PENNSYLVANIA.  35 

[Chess  v.  Chess.] 

Id.  485 ;  Norris's  Peake  197  ;  Swift's  Ev.  148  ;  1  Stark.  Ev.  148  ; 
1  McNally  304 ;  Bull.  N.  P.  296  ;  Phil.  Ev.  229 ;  3  Dane's  Dig. 
346 ;  2  Gilb.  Ev.  296. 

3d  and  4th.  If  William  Chess  had  been  incompetent  to  make  a 
deed  on  the  14th  of  February  1823,  in  consequence  of  weakness  of 
intellect,  and  the  deed  was  therefore  invalid,  yet  by  subsequent 
declarations  and  acts  he  might  confirm  it  and  make  it  valid  ;  this 
he  did  do  by  exhibiting  and  reading  it,  and  declaring  to  several 
persons  that  he  had  conveyed  the  land  in  dispute  to  his  son.  It  was 
therefore  manifest  error  in  the  court  to  decide  that  the  deed  could 
not  be  made  valid  by  confirmation,  and  withdrawing  the  considera- 
tion of  this  part  of  the  case  from  the  jury.  Cited  Shaler  v.  Sir 
John  Barrengton,  2  P.  Wms.  270  ;  Murry  v.  Riggs  et  al.,  15 
Johns.  R.  573-586;  Verplank  v.  Sterry,  2  Eq.  Ca.  Ab.  183; 
Verplank  v.  Sterry,  12  Johns.  R.  552;  Bennet  v.  Vade  et  al.,  2 
Atk.  324 ;  Shaler  v.  Barrengton,  1  P.  Wms.  482  ;  Simms  v.  Slo- 
cum,  3  Cranch  300 ;  Fletcher  v.  Peck,  6  Id.  133 ;  Jackson  ex 
dem.  v.  Eaton,  20  Johns.  R.  482 ;  Brooman  v.  Phelps,  2  Id.  178 ; 
The  Juniata  Bank  v.  Brown,  5  S.  &  R.  231-234  ;  Duncan  v.  Mc- 
Cullough,  4  Id.  485 ;  Wiseman  v.  Beake,  2  Vern.  121 ;  Baugh  v. 
Price,  1  Wilson  320  ;  Smith  v.  French,  2  Atk.  244 ;  Powell  on 
Con.  163-193;  Newlin  on  Con.  497-500;  Coke  Litt.  295-6; 
Parker  v.  Parmele,  20  Johns.  134;  Yard  v.  Adlum,  1  Rawle  171- 
177. 

5th.  The  deed  remained  in  the  hands  of  the  grantor  after  its  ex- 
ecution, and  on  the  16th  April  1823  it  was  put  upon  record  by 
him,  which  was,  of  itself,  a  delivery  and  confirmation;  for  it  is  not 
necessary  to  the  validity  of  a  delivery,  that  it  should  be  made  to  the 
grantee;  it  maybe  made  to  a  third  person,  and  not  in  the  presence 
of  the  grantee:  Verplank  v.  Sterry,  12  Johns.  R.  547-551;  Jack- 
son ex  dem.  v.  Phipps,  12  Id.  421 ;  13  Vincr's  Ab.  21 ;  Sauver- 
bye  v.  Arden,  1  Johns.  Ch.  255 ;  Taylor  et  al.  v.  Glaser,  2  S.  & 
R.  502.  The  recording  of  a  deed  by  the  grantor,  under  our  re- 
cording act,  is  equivalent  to  a  livery  of  seisin  :  Purd.  Dig.  165. 
A  delivery  is  essential  to,  and  is  the  consummation  of  a  specialty  : 
Taylor  et  al.  v.  Glaser,  2  S.  &  R.  503-4  :  Goodright  r.  Shaphen, 
Cowper  203  ;  Shep.  Touch.  60  ;  Perkins  154  ;  Inhabitants  of  Wor- 
cester v.  Eaton,  13  Mass.  374-5;  Jenk.  R.  166  ;  Coke  Litt.  b. 
48 ;  Butler  and  Baker's  Case,  3  Coke  R.  36  ;  Jennings  r.  Brags:, 
Cro.  Eliz.  447. 

6th.  It  is  not  a  good  cause  of  challenge  that  the  juror  called  had 
given  evidence  on  a  former  trial,  or  that  he  had  been  subpoenaed 
to  give  evidence  on  the  trial  to  which  he  was  called  as  a  juror. 
Every  juror  in  the  box  probably  knew  John  Ross,  and  all  might 
have  been  excluded  on  the  same  ground.  On  this  point  were  cited 
Harper  et  al.  i\  Kean,  11  S.  &  R.  380  :  Parkor  r.  Thornton.  2 
Lil  Raym.  1410;  21  Yin.  Ab.  268-272;  Durell  r.  Mosher,  8 
Johns.  R.  347. 


36  SUPREME  COURT  [Pittsburgh 

[Chess  r.  Chess.] 

Wilkina  and  Foncard,  for  appellees. — 1st.  The  declarations  of 
William  Chess,  made  after  the  execution  of  the  deed,  were  compe- 
tent evidence  for  the  purpose  for  which  they  were  given.  We  had 
shown  satisfactorily,  as  we  believed,  that  he  was  incapable  of  mak- 
ing a  deed  on  the  14th  February  1823  ;  the  plaintiff  contended  and 
endeavored  to  show  that  even  if  the  deed  was  invalid  at  the  time  it 
was  executed,  it  became  valid  by  the  subsequent  declarations  and 
acts  of  confirmation  by  the  grantor.  It  therefore  became  important 
for  us  to  show,  by  his  conduct  and  declarations,  after  its  execution, 
that  he  remained  incapable  of  making  a  deed ;  and  there  is  no  better 
criterion  by  which  to  judge  of  a  man's  intellect  than  his  conduct 
and  declarations.  The  rule  of  law  is  well  settled,  that  it  is  compe- 
tent to  give  in  evidence  the  declarations  of  a  testator,  both  before 
and  after  the  execution  of  his  will,  in  order  to  show  imbecility  of 
mind,  or  incompetency  to  make  a  will ;  and  there  is  no  difference 
in  the  case  of  a  will  and  deed,  when  the  testimony  is  offered  for  the 
same  purpose. 

2d.  All  the  witnesses  examined  as  to  the  general  character  of 
John  Ross,  had  previously  known  him  for  many  years  ;  they  lived 
but  four  miles  from  him,  and  were  perfectly  competent  to  testify 
from  their  knowledge,  whether  they  would  believe  him  on  his  oath  : 
Kiintnel  v.  Kiinmcl,  3  S.  &  R.  33G  ;  Wike  v.  Lightner,  11  Id. 
108-0;  Brindlc  et  al.  v.  Mcllvaine,  10  Id.  285. 

3d  and  4th.  That  which  is  absolutely  void  can  never  be  made 
valid.  If  the  facts  were  merely  that  William  Chess  was  incapable 
of  making  a  deed  on  the  14th  of  February  1823,  in  consequence  of 
imbecility  of  mind,  a  deed  executed  by  him  at  that  time,  although 
ineffectual  for  any  purpose,  yet  it  might  afterwards  be  confirmed. 
But  that  was  not  this  case.  Here  it  was  alleged  and  proved  that 
John  Chess  had  obtained  the  deed  from  his  imbecile  father  by  fraud 
and  imposition  ;  it  was,  therefore,  absolutely  void,  and  no  confirma- 
tion can  rest  upon  the  basis  of  fraud  ;  there  must  be  a  new  consid- 
eration :  Murry  v.  Riggs,  15  Johns.  R.  573;  Duncan  v.  Findlcy, 
4  S.  &  R.  483. 

5th.  The  plaintiff's  title  cannot  rest  upon  the  fact  that  the  re- 
cording of  the  deed  was  a  good  and  effectual  delivery  of  it,  for  it  is 
disproved  by  the  fact  that  previously  to  that  period  John  Chess  had 
brought  an  ejectment  to  recover  the  land  now  in  dispute  by  virtue 
of  this  deed.  But  there  was  no  evidence  that  William  Chess  put 
the  deed  upon  record.  It  was  a  matter  of  fact  to  be  left  to  the 
jury  to  be  judged  of. 

Oth.  Jurors  ought  to  be  perfectly  impartial  between  the  parties. 
In  the  case  of  Harper  «fc  Irvine  >•.  Kean,  11  S.  «fc  R.  280,  it  is  said 
that  if  the  testimony  which  the  juror  has  given  is  such  as  to  show 
that  he  has  formed  an  opinion  on  one  side  or  the  other,  he  ought  to 
be  rejected.  Here  the  juror  was  to  testify  as  to  a  fact  of  great 
importance,  and  one  which  had  created  a  great  deal  of  excitement 


Sept.  1829.]  OF  PENNSYLVANIA.  37 

[Chess  t.  Chess.] 

in  the  cause,  on  the  one  side  and  the  other.  But  even  if  the  judge 
who  tried  the  cause  was  wrong  in  rejecting  the  juror,  yet  it  is  not  a 
good  reason  for  a  new  trial. 

This  is  the  second  verdict  which  has  been  rendered  for  the  de- 
fendants, and  unless  manifest  injustice  is  done,  the  court  will  not 
grant  a  new.  trial :  Willis's  Lessee  v.  Buc'her,  2  Binn.  467  ;  Keble's 
Lessee  v.  Arthurs,  3  Id.  26 ;  Campbell  v.  Spencer,  2  Id.  133 ; 
Ileister  v.  Lynch,  1  Yeates  108. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — The  long  and  warmly  litigated  cause  of  Chess  v. 
Chess  and  others,  was  tried  at  the  last  Circuit  Court,  at  Pittsburgh, 
before  Mr.  Justice  Rogers,  and  again  comes  before  this  court  for 
decision,  on  an  appeal  from  the  judgment  of  that  court.  It  is  a 
family  contest,  and  has  not  only  been  before  the  Court  of  Common 
Pleas,  and  the  Supreme  Court  of  Allegheny  county,  but  also  here- 
tofore before  the  Circuit  Court ;  and  like  most  family  disputes,  has 
engendered  more  ill  blood  than  is  usual  'in  other  controversies. 
Indeed,  in  the  present  instance,  this  has  not  been  merely  confined 
to  the  parties  immediately  interested,  but  extended,  as  we  regret  to 
observe,  to  some  of  the  witnesses.  The  late  trial,  as  well  as  a  for- 
mer one,  was  long  and  arduous,  and  after  a  most  patient  investiga- 
tion, and  an  examination  of  many  .witnesses,  which  occupied  the 
attention  of  Justice  Rogers  ten  days,  the  cause  was  submitted,  under 
his  charge,  to  the  decision  of  the  jury.  The  action  is  an  ejectment, 
brought  by  John  Chess  against  William  Chess  and  others,  to  recover 
the  possession  of  about  one-hundred  and  twenty-one  acres  of  land, 
a  part  of  a  larger  tract,  late  the  estate  of  William  Chess,  deceased, 
father  of  the  parties  to  this  suit.  The  plaintiff  alleges  that  the 
tract  of  land  which  he  claims  was  conveyed  to  him  by  William 
Chess,  his  father,  on  the  14th  of  February  1823,  by  deed.  The 
consideration  in  this  deed  mentioned  is  "  natural  love  and  affection, 
and  $100."  The  defendants  allege  it  was  no/  so  conveyed,  and  claim 
the  land  as  heirs-at-law  of  the  said  William- Chess,  deceased,  so  that 
both  parties  claim  under  the  same  person. 

At  the  trial  the  defendants  contended  that  William  Chess  was 
generally  and  partially  deranged  ;  that  he  was  of  weak  mind,  and 
a  fit  subject  of  imposition  and  fraud;  and  that  such  was  the  case 
when  he  executed  the  deed  to  John  Chess.  The  plaintiff  denied 
this  and  contended  that  his  father  was  sane  at  the  time;  and  further, 
that  even  if  he  had  been  insane  on  the  14th  February  1823,  yet, 
that  he  afterwards,  at  a  time  when  he  was  in  his  perfect  senses, 
ratified  and  confirmed  the  deed,  and  that  therefore  he  is  entitled  to 
recover  the  land.  The  jury  found  a  verdict  for  the  defendants,  and 
the  court  refused  to  set  it  aside,  and  grant  a  new  trial,  but  rendered 
a  judgment  on  the  verdict,  from  which  the  plaintiff  has  appealed  to 
this  court,  for  the  following  reasons :  That  there  was  error,  1st,  in 


38  SUPREME  COURT  [Pittsburgh 

[Chess  v.  Chess.] 

admitting  evidence  of  the  declarations  of  William  Chess,  the  grantor, 
after  the  execution  of  the  deed  in  question,  as  testified  by  John 
Ross,  William  Kerns  and  others.  '2.  In  admitting  the  evidence 
of  Samuel  Thompson,  Benjamin  Darlington,  T.  B.  Dallas,  George 
Evans,  and  others,  in  relation  to  the  credibility  of  John  Ross, 
whose  general  character  had  been  impeached  by  the  plaintiff,  and 
of  whose  general  character  these  witnesses  had  no  knowledge.  3. 
In  the  court  charging  the  jury  that  if  the  deed  of  the  14th  Febru- 
ory  1823  was  invalid  at  that  time,  it  could  not  be  made  valid  by  any 
subsequent  act.  4.  In  the  court  taking  from  the  jury  the  consider- 
ation of  the  question  whether  the  deed  of  the  14th  February  was 
confirmed  by  any  subsequent  act  of  confirmation,  or  by  a  new  deliv- 
ery at  any  time  afterwards.  5.  In  charging  the  jnry  that  record- 
ing the  deed  was  no  delivery,  but  only  evidence  of  it,  of  which  the 
jury  were  to  judge.  6.  In  sustaining  the  challenge,  by  defendant's 
counsel,  of  William  Kerr,  a  juror,  on  the  sole  ground  that  he  was  a 
witness  in  the  cause.  The  exceptions  or  reasons  for  a  new  trial 
have  been  very  zealously  and  ingeniously  argued  by  the  counsel, 
and  many  authorities  have  been  cited. 

In  regard  to  the  first  reason,  it  may  be  observed  that  the  prin- 
ciple is  well  settled  that  no  one  shall  be  permitted  to  invalidate  his 
own  deed  by  his  subsequent  expressions ;  hence  it  is  contended  by 
the  plaintiff  that  the  court  before  which  the  cause  was  tried,  erred 
in  admitting  the  declarations  of  William  Chess,  made  after  the  exe- 
cution of  the  deed  to  John  Chess.  In  reference  to  this  part  of  the 
case,  we  ought  constantly  to  keep  in  mind  what  the  real  question 
before  the  court  was,  and  under  what  circumstances  the  conversa- 
tions of  the  grantor  relative  to  other  subjects,  as  well  as  to  the  deed, 
his  declarations  and  acts  were  admitted  in  evidence,  and  submitted 
to  the  jury.  The  insanity  of  the  grantor  was  alleged  on  one  side, 
and  denied  on  the  other;  and  the  jury  were  called  to  say  whether 
William  Chess  was  sane  or  insane  on  the  14th  February  1823. 
If,  under  such  circumstances,  I  was  required  to  decide  upon  the 
sanity  or  insanity  of  a  person,  I  know  riot  how  I  could  do  so  unless  I 
was  permitted  to  judge  from  his  conversations,  declarations  and  acts  ; 
these  would  be  the  only  means  to  enable  me  to  form  a  judgment. 
Here  the  defendants  offered,  and  the  court  received,  evidence  of 
the  conversations,  the  declarations  and  the  acts  of  William  Chess, 
not  as  is  supposed  for  the  purpose  of  verifying  the  facts  stated  in 
those  conversations,  but  to  show  the  state  of  his  mind — not  to  affect 
his  deed — not  as  declarations  made  contrary  to  it,  after  its  execu- 
tion ;  but  to  show  imbecility  of  judgment,  weakness  of  intellect,  and 
insanity  ;  in  short,  to  show  the  true  character  of  his  understanding, 
on  and  about  the  14th  of  February  1823.  This,  and  this  alone, 
was  the  object  of  the  evidence  offered.  The  court  did  riot  decide 
'hat  the  declarations  of  the  grantor,  after  deed  made,  could  be  re- 
ceived to  destroy  it ;  but  expressly  said,  that  these  declarations  were 


Sept.  1829.]  OF  PENNSYLVANIA.  39 

[Chess  v.  Chess.] 

admissible,  not  as  revoking  his  acts  done,  but  as  the  means  of 
ascertaining  whether  William  Chess  was  sane  or  insane,  weak  or 
competent.  On  this  point  the  parties  were  at  issue  ;  the  defendants 
alleged  insanity ;  it  therefore  became  incumbent  on  them  to  prove 
it,  since  everyone  is  presumed  to  be  of  perfect  mind  and  memory, 
unless  the  contrary  be  proved.  In  this  case  the  defendants  pursued 
the  proper  course,  and  proceeded  to  prove  William  Chess's  insanity, 
by  the  very  index  of  his  mind,  his  conversations,  declarations  and 
acts,  for  which  purpose  they  examined  many  witnesses.  The  plain- 
tiff did  the  same,  to  prove  his  sanity,  and  thus  there  was  brought 
before  the  court  a  mass  of  contradictory  evidence,  all  of  which  was 
fairly  and  legally  submitted  to  the  consideration  of  the  jury.  The 
judge  on  the  trial,  discovered  no  inclination  either  way  ;  but  on  all 
the  evidence,  left  the  sanity  of  the  testator  as  a  mere  fact  to  the 
jury,  who  were  the  judges  of  it.  I  fully  agree  with  the  counsel  for 
the  defendants,  that  the  case  of  Smith  v.  Irish,  so  often  mentioned, 
has  placed  this  matter  upon  the  true  ground,  and  decides  it.  If, 
indeed,  the  evfdence  had  been  received  for  purposes  similar  to 
those  mentioned  in  the  numerous  cases  cited  on  the  part  of  the 
plaintiff,  manifest  error  would  have  intervened ;  the  object,  how- 
ever, having  been  entirely  different,  the  cases  do  not  apply.  We 
think  there  was  no  error  in  admitting  this  evidence. 

In  the  next  place  it  is  said  that  the  court  erred  in  admitting  the 
evidence  of  Samuel  Thompson,  T.  13.  Dallas  and  others,  in  refation 
to  the  credibility  of  John  Ross,  one  of  the  defendants'  witnesses, 
whose  general  character  had  been  impeached  by  the  plaintiff,  and 
of  whose  general  character  the  witnesses  had  no  knowledge.  The 
plaintiff,  after  John  Ross  had  been  examined  in  chief  on  the  part  of 
the  defendants,  called  a  number  of  witnesses  to  hix  general  charac- 
ter in  his  nei</hborhooJ.,  as  to  truth,  who  said  it  was  bad.  The 
defendants  then  to  rebut  this,  and  support  his  character,  called 
witnesses  who  testified,  in  substance,  that  they  had  known  him 
many  years,  some  of  them  all  his  lifetime,  but  that  they  could  only 
speak  of  his  general  character  as  to  veracity,  without  being  able 
to  say  what  it  was  in  his  immediate  neighborhood ;  and  some  of 
these  witnesses  were  then  asked,  whether  they  would  believe  him  on 
his  oath,  from  what  they  knew  of  his  general  character  ?  And  of  this 
the  plaintiff  complains,  lie  contends  that  as  the  witnesses  only 
knew  his  general  character,  but  could  sav  nothing  of  his  character 
in  his  immediate  neighborhood,  thev  ought  not  to  have  been  ad- 
mitted to  testify.  I  have  not  been  able  to  discover  any  error  in  the 
admission  of  this  evidence:  indeed  I  thought  the  point  here  raised, 
had  been  at  rest  since  the  decision  of  Kimmel  r.  Kimmcl.  3 
S.  &  R.  330.  In  that  case  the  question  was  asked,  "What  is  the 
general  reputation  of  Peter  Kimmel,  in  the  fount//,  as  a  man  of 
truth?"  which  was  excepted  to.  and  the  court  below  sustained  the 
objection,  and  overruled  the  testimony.  The  Supreme  Court,  on  a 


40  SUPREME  COURT  IPittsburgh 

[Chess  v.  Chess.] 

writ  of  error,  reversed  the  judgment ;  and  Justice  Duncan  in  that 
case  said,  "character  and  reputation  are  the  same :  the  reputation 
which  a  man  has  in  society  is  his  character,  and  where  it  is  in  issue, 
particular  facts  cannot  be  inquired  into,  nor  given  in  evidence,  nor 
can  mere  opinion."  In  the  case  cited  from  11  S.  &  R.  199, 
this  case  of  Kirnmel  v.  Kimmel  is  recognised.  The  question  there 
was,  whether  he  knew  the  general  character  of  the  witness  ?  This, 
said  the  court,  was  strictly  proper,  and  add,  what  is  said  by  people 
in  general,  is  the  true  point  of  inquiry  ;  and  everything  short  of  it 
is  incorrect ;  so  that  we  find,  the  witness  is  not  strictly  confined  to 
the  immediate  neighborhood  of  the  person,  but  is  allowed  to  say, 
what  his  character  for  truth  is  in  the  county,  or  what  the  people 
in  general  say  as  to  his  general  character.  In  this  last  mentioned 
case  it  is  declared,  that  to  the  question,  whether  the  witness  would 
believe  him  on  his  oath  ?  a  direct  answer  would  not  be  objection- 
able, provided  the  belief  was  founded  on  the  witnesses's  knowledge 
of  his  general  character,  otherwise,  it  would  not  be  to  the  purpose; 
though  I  will  observe,  that  in  practice,  I  have  heard  the  single 
question,  "  Would  you  believe  him  on  oath?"  put  for  thirty  years 
and  more  without  objection.  To  come,  then,  to  the  case  immedi- 
ately before  us:  Justice  Rogers  decided  that  in  attacking  the  cha- 
racter of  a  witness,  the  proper  mode  was  to  ask  the  witness  whether 
he  was  acquainted  with  the  general  character  of  the  witness  for 
truth  and  veracity,  arid  whether  from  that  general  character  he 
would  believe  him  on  his  oath?  lie  farther  decided,  that  in  sup- 
porting the  character  of  the  witness,  the  same  mode  should  be  pur- 
sued. The  witness  whose  character  was  impeached,  lived  in  St. 
Clair  township,  about  four  miles  from  Pittsburgh,  and  is  a  man 
well  known  in  Allegheny  county.  The  witnesses  who  supported 
his  character,  live  in  Pittsburgh  ;  they  had  seen  him  often,  trans- 
acted business  with  him,  knew  him  well  and  were  acquainted  with 
his  character.  With  regard  to  the  meaning  of  the  terms,  neighbors, 
neighborhood,  immediate  neighborhood,  I  would  say,  in  reference  to 
the  present  objection,  that  they  were  co-extensive  with  the  range 
of  John  Ross's  frequent  intercourse  with  his  fellow-citizens,  which, 
from  the  evidence,  includes  the  county  of  Allegheny.  On  this  part 
of  the  case  I  am  authorized  to  state  that,  at  the  trial  of  the  case, 
Judge  Rogers  was  of  opinion,  although  he  did  not  so  decide,  that 
greater  latitude  is  given  in  support  than  in  attacking  character; 
and  this  I  think  is  abundantly  supported  by  the  authorities,  and  by 
the  reason  of  the  thing.  fr>o  that  if  there  was  error,  it  was  in  favor 
of  the  plaintiff  who  excepts.  But,  in  our  opinion,  there  was  no 
error ;  and  a  new  trial  cannot  be  awarded. 

I  proceed  to  the  examination  of  the  3d  and  4th  exceptions,  which 
may  be  considered  together.  In  regard  to  the  3d,  I  must,  however, 
observe,  that  the  counsel  have  changed  the  words  and  meaning  of 
the  judge,  to  make  the  error  of  which  they  complain.  The  excep 


Scot.  1829.]  OF  PENNSYLVANIA.  41 

[Chess  v.  Chess.] 

tion  is,  that  the  jury  was  told,  if  the  deed  of  14th  February  1823 
was  invalid  at  that  time,  it  would  not  be  made  valid  by  any  subse- 
quent act.  The  court  did  not  say  so ;  the  words  of  the  judge  are, 
"  If  William  Chess  was  insane  at  the  time  of  the  execution  and 
delivery  of  the  deed,  or  if  it  was  procured  by  imposition  and  fraud, 
the  deed  was  absolutely  void,  and  no  acts  or  declarations  of  his, 
which  have  been  given  in  evidence,  would  confirm  it."  The  mean- 
ing of  the  judge  is  evident,  and  cannot  be  misunderstood;  he  did 
not  inform  the  jury  that  an  invalid  deed  could  not  be  made  valid. 
The  cases  cited  on  this  subject  clearly  establish  the  distinction  be- 
tween a  void  and  an  invalid  or  voidable  deed,  and  that  the  former 
cannot  be  confirmed,  though  the  latter  may.  In  Coke  Litt.  295  b, 
a  confirmation  is  said  to  be  a  conveyance,  whereby  a  voidable  estate 
is  made  good,  or  a  lesser  estate  is  enlarged  ;  but  when  a  deed  is 
void,  then  there  can  be  no  confirmation.  In  1  Wils.  320,  it  is 
decided  that  articles  and  conveyances  obtained  by  fraud  and  impo- 
sition, were  not  made  good  by  the  subsequent  acts  and  declarations 
of  the  grantor.  So,  also,  in  15  Johns.  573,  and  Duncan  v.  McCul- 
lough,  4  S.  &  R.  483,  and  many  more  cases  might  be  cited,  estab- 
lishing the  same  doctrine.  I  think  Lord  Mansfield  somewhere  has 
said,  there  could  be  no  confirmation  of  a  thing  absolutely  void,  but 
that  the  acts  of  the  grantor  might  operate  as  a  new  grant.  Were 
there  any  such  acts  proved  in  this  case  ?  I  have  looked  for  these 
in  the  evidence,  but  looked  in  vain  ;  they  are  not  to  be  found  in  the 
evidence  (I  speak  here  my  own  sentiments) ;  on  the  contrary,  a  host 
of  witnesses  proved  Mr.  Chess,  the  father,  to  be  "a  man  of  weak  and 
confined  intellect,  at  intervals  clearly  insane,  and  at  all  times  inca- 
pable of  transacting  business,  unless  with  the  advice  of  his  family. 
He  did  not  for  many  years  before  his  death  manage  or  direct  the 
business  of  his  farm,  but  left  it  to  others.  For  years,  as  the  plain- 
tiff's own  witnesses  proved,  he  entertained  a  groundless  antipathy 
against  his  wife  and  his  eldest  daughter  ;  and  some  time  previous 
to  the  14th  February  1823,  he  went  to  reside  with  the  plaintiff,  who 
had  before  been  advanced  more  than  a  child's  share,  and  whose 
influence  over  him  I  can  hardly  doubt.  In  short,  the  circumstances, 
before  and  at  the  execution  of  the  deed,  were  very  suspicious,  and 
after  the  execution  the  grantor  returned  with  John,  continued  with 
him,  and  subject  to  his  influence,  until  near  his  death  :  during  all 
which  time  there  is  not  any  act  or  expression,  not  a  whisper  proved, 
indicating  a  confirmation  of  his  deed.  To  me  it  does  appear  that 
the  condition  of  his  intellect  was  no  better  after  than  before  or  at 
the  date  of  the  deed  ;  if  indeed  there  was  any  change,  it  was  for  the 
worse.  When  he  spoke  of  the  contents  of  the  deed,  he  spoke  of  it 
as  containing  one  hundred  acres  and  no  more,  although  the  deed 
contains  one  hundred  and  twenty-one  acres :  and  we  are  told  that 
the  surplus  of  twenty-one  acres  is  full  of  coal,  and  therefore  very 
valuable.  When  and  where,  then,  I  ask,  did  he  confirm  the  deed  ? 


42  SUPREME  COURT  [Pittsburgh 

[Chess  v.  Chess.] 

But,  I  repeat  it,  if  there  was  actual  fraud  when  the  deed  was  exe- 
cuted, it  could  not  be  confirmed;  for  it  then  comes  directly  within 
the  principle  settled  in  Duncan  v.  McCullough,  4  S.  &  R.  483,  and 
since  in  Adlum  v.  Yard,  1  Rawle  171.  I  cannot  discover  that  the 
court  took  any  facts,  which  were  offered  to  prove  a  confirmation  of 
the  deed,  from  the  consideration  of  the  jury,  to  say  whether  the 
grantor  was  sane  and  of  perfect  mind,  and  free  from  imposition  or 
fraud,  at  the  time  the  alleged  confirmation  was  made,  or  not.  These 
exceptions  are  not  sustained. 

The  5th  reason  is,  that  the  court  erred  in  charging  the  jury  that 
recording  the  deed  was  no  delivery,  but  only  evidence  of  it,  of 
which  the  jury  were  to  judge.  In  the  argument  on  this  point,  the 
counsel,  with  much  apparent  plausibility,  contended  that  by  our 
recordin"  act  of  1715,  deeds  of  bargain  and  sale  have  the  same 

o  o 

effect  as  a  feoffment ;  that  enrolling  is  like  livery  of  seisin,  and  that 
a  deed  takes  effect  from  it.  Without  entering  into  a  minute  exam- 
ination of  the  soundness  of  the  doctrine  contended  for,  as  that 
appears  to  me  not  necessary,  I  will  venture  my  opinion  thus  far, 
that  although  a  feoffment,  lease  and  release,  fine,  &c.,  are  said  to 
operate  by  transmutation  of  possession,  and  a  bargain  and  sale  by 
the  act  alluded  to,  has  the  same  legal  effect  as  a  feoffment  or  release, 
yet  the  time  when  the  deed  of  bargain  and  sale  takes  effect,  is  the 
time  of  actual  delivery.  In  the  evidence,  I  can  see  no  proof  of  the 
delivery  of  the  deed,  or  anything  to  show  who  placed  it  on  record; 
indeed  it  appears  to  me  there  is  not  the  color  of  evidence  that  Wil- 
liam Chess  took  the  deed  to  the  recording  office ;  all  that  is  proved 
as  to  this  part  of  the  cause  being  that  two  or  three  weeks  before  the 
1st  of  April,  the  old  man  came  to  the  river,  and  said,  "  he  was 
going  to  got  the  deed  recorded ;"  and  thus  far  he  is  traced,  and  no 
further.  It  was  not  then  recorded,  and  not  until  about  three  weeks 
after,  by  whom,  no  one  does  or  can  say.  I  have  examined  the  tes- 
timony bearing  on  this  part  of  the  cause,  with  some  attention,  and 
it  appears  to  me  that  if  the  deed  was  not  delivered  on  the  14th 
February  1823,  there  is  no  evidence  that  it  was  delivered  in  fact  at 
any  other  time.  The  mere  reading  of  it  is  not  a  delivery  ;  it  is 
evidence  only  of  a  delivery.  Delivery  is  requisite  to  the  proper 
and  legal  execution  of  a  deed,  and  it  may  be,  as  stated  in  Shepp. 
Touch.  57-5H,  and  12  Johns.  421,  cither  actual,  by  doing  some- 
thing and  saying  nothing,  or  else  verbal,  by  saying  something  and 
doing  nothing  ;  or  it  may  be  by  both  ;  but  by  one  or  both  of  them, 
it  must  be  made;  for  otherwise,  though  it  be  ever  so  well  sealed 
and  written,  yet  it  is  of  no  force.  The  delivery  may  be  to  the 
party,  or  to  any  one  for  the  party,  if  duly  authorized  ;  or  to  a 
stranger,  for  the  use  of  the  party,  without  authority.  I  cannot  sec, 
in  this  case,  any  evidence  of  a  delivery  by  William  Chess.  If  then 
the  deed  was  not  delivered  on  the  14th  February  1823;  if  on  that 
day  the  grantor  was  insane,  it  was  incumbent  on  the  plaintiff  to 


Se.pt.  1829.]  OF  PENNSYLVANIA.  4J 

[Chess  v.  Chess.] 

show  when  it  was  delivered.  lie  has  not  done  so ;  and  in  the  ab- 
sence of  proof  to  the  contrary,  the  inevitable  presumption  is,  it  was 
delivered  in  fact  on  the  day  it  bears  date ;  but  on  that  day  the  jury 
have  pronounced  him  to  have  been  insane,  arid  it  is  therefore  almost 
unnecessary  to  say,  this  deed  could  not  have  been  legally  executed. 
The  recording  of  it,  therefore,  was  no  delivery  ;  at  best,  it  was 
merely  evidence  of  delivery,  of  which  the  jury  were  to  judge.  I 
am  accordingly  of  opinion,  that  in  respect  to  this  part  of  the  cause, 
the  judge  charged  correctly,  and  that,  for  the  reason  here  assigned, 
we  ought  not  to  grant  a  new  trial. 

o  o 

One  exception  more  remains  to  be  adverted  to.  It  is,  that  the 
court  erred  in  sustaining  the  challenge  of  the  defendants  to  a 
juror,  on  the  sole  ground  that  he  was  a  witness  in  the  cause.  In 
the  case  of  Harper  &  Irvine  v.  Kean,  11  S.  &  R.  280,  the  cause 
of  challenge  was  "  that  the  juror  had  been  examined  before  arbi- 
trators as  a  witness  for  the  defendant;"  and  it  is  there  said  that  a 
juror  is  a  competent  witness,  arid  that  therefore  it  cannot  be  a  rule 
that  one  cannot Hbe  a  juror  because  he  has  given  testimony  in  the 
same  cause  before  another  tribunal ;  but  it  is  also  there  said  that  it 
seems  if  the  testimony  be  of  such  a  nature  as  to  show  that  he  had 
formed  an  opinion  in  favor  of  one  of  the  parties,  it  ought  to  exclude 
him  from  the  jury.  And  this  is  right.  In  this  case  the  juror 
wished  to  be  excused,  and  stated  he  was  a  witness.  It  did  not  then 
appear  what  he  would  prove ;  but  it  was  known  he  was  a  witness 
for  the  plaintiff;  and  if,  as  it  has  been  said,  he  was  to  be  called  to 
impeach  the  character  of  John  Ross,  who  was  an  important  witness 
for  the  defendants,  and  whom  it  was  said  the  juror  would  not  believe 
on  oath,  he  ought  to  have  been  excluded  from  the  jury.  In  deliv- 
ering the  opinion  of  this  court,  in  a  case  at  the  last  term  for  the 
middle  district  a#  Sunbury,  I  said  that  it  did  not  escape  the  discern- 
ment of  our  legislature,  that  a  principle  requisite  to  secure  a  due 
administration  of  justice,  and  fair  and  impartial  trials,  was  to  have 
jurors  who  were  impartial  and  entirely  free  from  all  kind  of  bias, 
or  the  suspicion  thereof;  that  like  Cesar's  wife,  they  ought  not 
only  to  be  pure,  but  unsuspected.  Our  jury  law  manifestly  pro- 
vides for  an  impartial  jury.  What  was  done  in  this  particular,  in 
the  case  before  us  ?  Why  a  doubtful  man  was  set  aside,  in  a  great 
measure  upon  his  own  request,  and  one  not  liable  to  any  objection, 
substituted.  Surely  this  was  not  error.  In  fine,  we  are  of  opinion 
that  a  new  trial  ought  not  to  be  granted,  for  any  of  the  reasons 
assigned,  but  that  the  judgment  of  the  Circuit  Court  should  be 
affirmed. 

TOD,  Justice,  dissented. 

Rofcrred  to,  "2  P.  &  W.  231 ;  2  Barr  193  ;  10  Id.  US 9.  340 :  1  Jones  352,  1 
II.  494;  5  C.  489;   13  Wr.  212. 
Followed,  2  II.  154 ;  3  II.  56,  57. 


4-1  SUPREME  COURT  [Pittiburgh 


McGrew  against  McLanahan  et  al. 

When  land  is  sold  upon  a  judgment,  the  sheriff  must  appropriate  the 
money  arising  from  the  sale  to  existing  liens,  according  to  their  priority, 
and  convey  to  the  purchaser  a  title  free  from  encumbrances. 

When  a  judgment  is  obtained  upon  one  of  several  bonds  which  were 
secured  by  a  mortgage,  and  an  execution  issued  thereon,  upon  which  the 
mortgaged  promises  are  levied,  and  .afterwards  sold  upon  a  venditioni  exponas, 
before  the  mortgage  is  due,  the  purchaser  takes  the  land  discharged  of  the 
lien  of  the  mortgage. 

THIS  was  an  appeal  from  the  decision  of  Huston,  J.,  at  a  Circuit 
Court,  held  for  Westmoreland  county. 

Matthew  McLanahan,  one  of  the  defendants,  being  the  owner  of 
a  tract  of  land,  on  the  15th  of  April  1815,  executed  a  mortgage 
thereon,  to  secure  the  payment  of  eight  bonds  to  William  Campbell, 
bearing  even  date  with  the  said  mortgage,  and  each  conditioned  for 
the  payment  of  $350,  on  the  15th  of  April,  in  each  year  thereafter, 
until  the  whole  should  be  paid.  The  mortgage  was  recorded  on  the 
24th  January  1817.  On  the  15th  April  1817,  two  of  the  mort- 
gage bonds  being  due,  William  Campbell  brought  separate  suits 
thereon  against  Matthew  McLanahan,  in  the  Common  Pleas  of 
Westmoreland  county,  to  August  term  1817,  and  obtained  judg- 
ments :  writs  of  fieri  facias  were  issued  to  the  next  term,  which 
were  levied  upon  the  mortgaged  premises ;  an  inquisition  thereon 
held,  and  the  same  condemned,  whereupon  to  November  term  1818, 
a  venditioni  exponas  issued,  and  the  land  was  sold  to  Simon  Drum, 
the  other  defendant,  for  $050,  who,  on  the  17th  February  1819, 
received  the  sheriff's  deed  therefor. 

After  the  mortgage  became  due,  a  scire  facias  was  issued  thereon 
to  August  term  1*24,  upon  which  judgment  was  obtained  on  the 
21st  October  1S24,  for  $205(.>.3l»;  a  levari  facias  was  issued  to 
February  term,  1*25,  and  the  land  was  sold  to  James  B.  McGrew, 
the  plaintiff,  who  was  also  the  assignee  of  the  mortgage,  for  §1500, 
who  received  the  sheriff's  deed  for  the  same  on  the  23d  of  February 
1*25. 

It  also  appeared  that  the  $<i50  paid  by  Simon  Drum,  was  more 
than  sufficient  to  pay  the  judgments  of  William  Campbell,  upon 
which  it  was  sold,  and  a  small  balance  thereof  was  paid  to  Matthew 
McLanahan,  the  mortgagor,  and  Simon  Drum,  the  purchaser,  under 
the  judgments  obtained  on  the  mortgage  bonds. 

Lnder  the  direction  of  the  court,  the  jury  found  a  verdict  for  the 
defendants.  A  motion  was  made  for  a  new  trial : 


Sept.  1829.]  OF  PENNSYLVANIA.  45 

[McGrew  v.  McLanahan.  | 

1st.  Because  the  court  erred  in  instructing  the  jury  that  the  sale 
made  to  Simon  Drum,  upon  the  judgment  discharged  the  lien  of  the 
mortgage. 

2.  Because  the  court  directed  the  jury  that  they  ought  to  find  for 
the  defendants,  whereas  their  verdict  ought  to  have  been  for  the 
plaintiff. 

Which  motion  was  overruled,  and  the  plaintiff  appealed. 

In  this  court,  the  case  was  argued  by  A.  C.  Foster  and  Coulter 
for  appellant. — The  case  of  Nichols  v.  Postlethwaite,  2  Dall.  131, 
and  Commonwealth  v.  Alexander,  14  S.  &  R.  257,  established  the 
principle,  that  riot  only  judgments  against  the  defendant  whose  land 
is  sold,  but  also  against  his  vendor,  and  even  legacies  must  be  paid 
by  the  sheriff,  out  of  the  proceeds  of  the  sale.  But  to  this  rule  it 
is  apprehended  there  are  exceptions.  If  a  junior  judgment-creditor 
sells  lands  sufficient  to  pay  all  prior  judgments,  there  can  be  no  good 
objection  from  any  quarter,  but  if  those  lands  are  sold  for  a  sum 
which  is  insufficient  to  satisfy  the  prior  judgments,  the  court  on  the 
application  of  those  prior  judgment-creditors,  would  refuse  to  confirm 
the  sale,  or  to  permit  the  sheriff  to  acknowledge  the  deed.  It  would 
not  be  sanctioned,  that  the  security  of  a  judgment-creditor  should  be 
swept  away  by  one  who  could  have  no  beneficial  interest  in  the  sale, 
or  in  the  fund  produced  by  it. 

Two  fundamental  principles  may  be  laid  down,  which  will  form  a 
rule  to  decide  all  possible  cases  that  can  arise  under  a  sheriff's  sale. 
The  first,  which  has  been  long  established,  is,  that  any  right,  how- 
ever small,  may  be  sold  in  Pennsylvania,  for  the  payment  of  debts. 

The  second  is,  that  every  rule  of  law  and  equity,  applicable  to  a 
sale  made  by  an  individual,  is  also  applicable  to  a  sale  made  by  a 
sheriff.  Thus,  if  one  against  whom  there  are  several  judgments, 
sells  his  land  for  more  than  the  amount  of  such  judgments,  the  pur- 
chaser will  be  justified  in  appropriating  so  much  of  the  purchase- 
money  to  their  payment;  and  it  will  be  payment  of  so'hiueh  to  the 
vendor.  If  he  does  not  thus  sell,  the  law  will  interpose  and  sell  for 
him,  and  direct  the  sheriff  to  do  that  which  he  himself  might  have 
done.  If  the  purchaser  would  pay  over  the  purchase-money  to  the 
vendor,  the  lien  of  the  judgments  would  remain ;  nor,  if  the  pur- 
chaser at  sheriff's  sale  neglects  to  see  the  money  appropriated  to  the 
payment  of  prior  judgments,  will  the  sale,  it  is  apprehended,  dis- 
charge prior  liens. 

The  case  of  a  mortgage  stands  on  stronger  grounds,  as  respects 
the  mortgaged  property,  than  the  rights  even  of  a  prior  judgment- 
creditor.  It  is  considered  as  established  law,  that  as  between  the 
mortgagor  and  mortgagee,  the  legal  estate  is  in  the  latter,  and  the 
equity  of  redemption  in  the  former.  The  right  of  the  mortgagee  to 
sustain  an  ejectment  upon  the  mortgage  deed,  and  recover  the  pos- 
session of  the  land,  that  the  executing  of  a  mortgage  by  one  joint 


46  SUPREME  COURT  [Pittsburgh 

[McGrew  v.  McLanahan.] 

tenant,  severs  the  joint  tenancy ;  and  other  cases  prove,  that  the 
common-law  construction  and  effect  of  a  mortgage  is  recognised  in 
Pennsylvania,  and  is  unaffected  by  the  remedy  afforded  by  our 
statute. 

What  more  can  be  levied  on  a  fi.  fa.  than  the  equity  of  redemp- 
tion? It  is  all  the  right,  title,  interest  and  claim  of  the  defendant. 
Could  he  sell  more  by  private  sale,  or  would  anything  more  pass 
from  him  by  any  deed  he  could  make?  And,  it  may  be  asked  with 
great  confidence,  can  the  sheriff  sell  any  greater  estate  than  the 
defendant  had  ? 

This  question  arose  in  the  case  of  Patterson  v.  Sample,  4  Yeates 
308.  There  the  mortgage  was  recorded  13th  March  1801,  more 
than  six  months  from  its  date,  but  before  the  judgment,  which  was 
entered  14Ui  November  1801.  The  mortgaged  land  was  sold  under 
a  judgment  for  38000.  An  application  having  been  made  to  the 
Supreme  Court  on  appeal  from  the  Circuit  Court,  that  court  ex- 
pressly declared,  "  that  the  mortgagee  had  a  plain  simple  remedy, 
by  proceeding  in  the  usual  way  on  the  mortgage."  This  decision 
cannot  be  misunderstood;  and  if  it  is  authority,  is  conclusive  of  this 
cause,  unless  the  circumstance  of  the  judgment  upon  which  the  land 
was  sold,  being  obtained  upon  a  bond  which  was  secured  by  the 
mortgage,  should  alter  the  case,  and  it  is  not  easily  discoverable  how 
that  can  be. 

In  McCall  v.  Lenox,  9  S.  &  R.  308,  the  present  chief  justice 
expressly  says,  if  the  mortgagee  ''  proceeds  as  a  judgment-creditor 
on  the  bond,  he  may  instantly  have  execution  of  the  mortgaged  pre- 
mises, to  the  extent  of  the  equity  of  redemption."  And  Duncan, 
J.,  was  of  opinion,  ''that  when  there  was  a  judgment  for  one  entire 
debt,  secured  by  a  mortgage,  and  the  mortgaged  premises  sold,  the 
purchaser  acquires  all  the  title  of  the  mortgagor;"  yet  he  exccpts 
from  this  general  doctrine,  the  case  of  several  bonds,  given  to  the 
same  person,  secured  by  the  same  mortgage.  The  plaintiff  is  there- 
fore not  without  authority  on  his  side.  In  the  case  of  Lenox  v. 
McCall,  Judge  Duncan  says  that  the  case  of  Jackson  i\  Hall,  11 
Johns.  R.  4»)^  ;  where  the  land  sold  for  $70,  !U|(1  had  been  mort- 
gaged for  §700,  was  determined  upon  principles  of  strict  law, 
arising  from  the  disparity  of  price  and  real  value.  But  how 
dangerous  it  would  be  to  render  the  law  thus  uncertain.  If  any 
weight  ought  to  be  attached  to  such  a  circumstance,  it  would  apply 
with  its  fullest  force  to  this  case,  where  the  land  was  sold  for  less 
than  one-fourth  its  value.  The  authority  of  the  case  in  11  Johns, 
is  not  in  any  degree  shaken  by  the  case  of  Tver  and  Aiken  r.  Anon, 
2  Johns.  Ch.,  it  is,  indeed,  confirmed.  It  is  true  the  chancellor 
intimates  certain  supposed  inconveniences  that  may  arise  from  the 
sale  of  an  equity  of  redemption;  yet  in  that  case,  although  the 
land  was  levied  on,  and  not  the  equity  of  redemption  by  express 


Sept  1829.]  OF  PENNSYLVANIA.  47 

[McGrew  p.  McLanahan.] 

terras,  he  considers  it  nevertheless  as  only  the  equity  of  redemption, 
and  decrees  accordingly  ;  and  the  suggestion  that  lie  might  here- 
after issue  an  injunction  to  prevent  the  sale  of  the  equity  of  redemp- 
tion (from  its  supposed  injury)  would  apply  as  well  to  a  case  where, 
in  express  language,  the  equity  of  redemption  was  levied  on,  as 
where  it  followed  from  natural  and  legal  construction. 

The  Acts  of  Assembly  in  relation  to  sales  under  judgments,  only 
give  such  title  to  the  purchaser  as  the  defendant  had  at  the  time  the 
judgment  was  obtained;  and  the  circumstance  of  its  having  been 
obtained  upon  a  mortgage  bond,  can  not  alter  the  law.  In  the 
argument  of  the  case  of  Bantleon  v.  Smith,  2  Binn.  146,  Mr.  IIop- 
kinson  and  Mr.  Rawle  say,  "  it  is  analogous  to  the  case  of  a  bond 
and  mortgage,  in  which  an  execution  and  sale,  under  the  bond,  has 
never  been  supposed  to  extinguish  the  plaintiff's  lien." 

A.  B.  Alexander,  for  appellees. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — The  question  which  is  presented  for  the  decision  of 
this  court  is,  whether  the  purchaser  of  the  land,  sold  under  the 
levari  facias,  issued  on  the  judgment  obtained  on  the  scire  facias  on 
the  mortgage,  for  several  of  the  instalments  due  on  the  land,  can 
recover  in  an  ejectment  the  possession  of  the  land  from  the  mort- 
gagor and  the  purchaser  of  the  same  land,  sold  to  him  by  the 
sheriff,  under  an  execution  issued  on  a  judgment,  obtained  in  the 
action  brought  to  recover  the  amount  of  one  of  the  bonds,  the  pay- 
ment of  which  was  secured  by  the  same  mortgage,  when  the  said 
judgment  had  been  obtained,  execution  issued,  and  the  land  sold, 
before  action  was  brought,  or  judgment  rendered,  on  the  mortgage 
for  said  subsequent  instalments. 

At  the  Circuit  Court  held  last  August  by  Justice  Huston,  for  the 
county  of  Westmoreland,  he  instructed  the  jury  that  the  sale  of  the 
land,  on  the  judgment  in  the  suit  on  the  bond,  extinguished  the 
right  of  the  plaintiff  to  sell  the  same  land  again  on  the  mortgage  ; 
that  Simon  Drum,  the  purchaser  at  the  first  sheriff's  sale,  bought 
the  estate,  and  held  it  freed  and  discharged  from  this  mortgage,  and 
that  the  last  sale  to  the  plaintiff  was  void,  and  vested  no  interest  in 
him.  The  jury  found  accordingly  for  the  defendants,  and  from  this 
decision  the  plaintiff  appealed  to  this  court. 

In  the  case  of  judgments,  it  certainly  has  been  an  ancient  prac- 
tice, and  is  now  a  settled  rule,  for  the  sheriff,  when  land  has  been 
sold  by  him  on  a  judgment,  to  appropriate  the  money  proceeding 
from  the  sale,  to  existing  liens,  according  to  their  priority,  and  to 
convey  to  the  purchaser  a  title  free  from  encumbrances.  See  1 
Binn/ 97  ;  3  Id.  358 ;  1  S.  &  R.  320 ;  7  Id.  290 :  14  Id.  iV,7.  In 
the  case  of  Nicholls  v.  Postlethwaite,  2  Dall.  131,  decided  at  a 
court  of  Nisi  Prius,  at  Carlisle,  the  court  even  directed  Icgaciet 


48  SUPREME  COURT  [Pittsburgh 

[McGrew  v.  McLanahan.] 

charged  on  the  land  of  the  defendants,  by  his  devisor  to  be  paid. 
And  the  case  of  Gurney's  Ex'r  v.  Alexander,  14  S.  &  II.  257, 
clearly  goes  to  establish  the  principle  that  not  only  judgments 
against  the  defendants,  but  judgments  against  his  vendor,  which 
were  a  lien  on  the  land,  should  be  paid  out  of  the  money  arising 
from  the  sale  of  the  defendant's  land. 

The  case  of  McCull  t>.  Lenox,  9  S.  &  R.  308,  goes  far  to  decide 
the  present  question.  In  that  case  Chief  Justice  Tilghman  remarked 
upon  the  practice  in  this  state  to  sell  land  for  its  full  value  without 
regard  to  liens,  and  apply  the  proceeds  of  the  sheriff's  sale  to  the 
discharge  of  liens  according  to  their  priority.  And  in  a  case  of 
Glass  r.  Gilmore,  decided  by  this  court  in  Lancaster,  at  May  term, 
182H,  and  not  yet  reported,  Justice  Rogers,  in  delivering  the  judg- 
ment of  the  court,  said,  "  As  respects  sales  made  by  the  sheriff,  it 
has  been  already  decided  that  the  lien  of  judgments,  and  even  lega- 
cies, charged  on  lands  are  divested;  that  the  judgment-creditor  and 
legatee  must  look  to  the  sheriff  for  their  money,  as  the  purchaser  is 
not  bound  to  see  to  the  application  of  the  purchase-money." 

But  it  is  contended  that  the  rights  of  a  mortgagee  stand  on 
higher  grounds  than  those  of  a  prior  judgment-creditor.  I  confess 
I  cannot  sec  why  they  should  ;  nor  have  they,  in  adjudged  cases  on 
this  subject,  been  so  considered.  Although  mortgages  in  form  are 
coveyances  of  lands,  yet.  in  substance,  they  are  only  securities  for 
the  payment  of  money  ;  and  the  debt  being  once  paid,  or  extin- 
guished, the  mortgage  is  considered  as  at  an  end.  Between  the 
mortgage  and  the  bond,  there  is,  as  Judge  Duncan  expresses  it,  an 
inseparable  union ;  the  bond  is  the  principal,  the  mortgage  an  inci- 
dent to  it,  incapable  of  existing  without  the  debt,  of  which  the  bond 
is  the  original  security.  I  low  then,  when  the  land  is  sold  for  the 
very  debt  secured  by  the  bond,  can  the  rights  of  mortgagees  be  con- 
sidered as  standing  on  higher  grounds  than  the  rights  of  prior  judg- 
ment-creditors ?  The  bond  and  mortgage  are  securities  for  one  and 
the  same  debt,  to  recover  which  the  mortgagee  has  three  remedies ;  he 
may  proceed  by  ejectment  and  recover  the  premises;  byscire  facias 
on  the  mortgage,  or  on  the  bond,  by  an  action  of  debt ;  if  he  proceed 
by  scire  facias,  or  by  action  of  debt  on  the  bond,  he  may  recover  the 
debt  by  a  sale  of  the  land.  The  mortgagee  lias  his  election  to  pro- 
ceed in  either  way,  and  having  seen  proper  to  proceed  on  the  bonds, 
or  one  of  them,  arid  have  the  land  sold,  the  very  substance  itself, 
it  would  be  wholly  incongruous  and  unjust,  to  permit  him  to  pro- 
ceed to  a  second  sale  on  a  scire  facias,  of  the  same  substance.  Such 
double  proceedings  are  incompatible,  and  repugnant  to  the  spirit 
and  policy  of  our  law.  The  land  cannot  be  twice  sold.  If  by  this 
proceeding  on  one  of  the  bonds,  the  mortgagee  has  been  injured, 
or  a  loss  has  been  sustained,  it  is  his  own  fault,  by  not  proceeding 
directly  on  the  mortgage;  to  prevent  injury  to  others,  the  mort- 
gagee must  so  deal  with  his  security,  as  not  to  work  injustice. 


Sept.  1829.]  OF  PENNSYLVANIA.  49 

[McOrew  v.  McLanuhan.] 

These  principles  have  been  established  by  former  decisions,  particu- 
larly that  in  the  case  of  McCall  v.  Lenox,  9  S.  &  11.  302.  But  the 
question  was  put  at  rest  by  this  court,  at  the  last  session  at  Sun- 
bury,  in  June,  in  the  case  of  Willard  and  Adams  v.  Norris.  2 
llawle  56.  In  that  case,  the  land  had  been  sold  by  the  sheriff,  with- 
out any  reservation  or  mention  of  encumbrances.  The  question 
was,  whether  a  purchaser  at  sheriff's  sale,  under  a  judgment,  held 
the  land  freed  and  discharged  of  the  lien  of  a  mortgage,  prior  to 
the  judgment;  and  it  was  decided  that  in  this  state,  the  usage  had 
been,  if  there  was  not  an  express  reservation,  that  the  title  and  lien 
of  a  prior  mortgage  were  divested,  and  extinguished  by  a  sheriff's 
sale  of  the  land  on  a  younger  judgment.  The  opinion  delivered  in 
that  case,  by  Justice  Tod,  entered  into  a  full  examination  of  all  the 
cases.  We  are,  accordingly,  of  opinion,  that  the  decision  of  the 
Circuit  Court  was  right,  and  that  the  judgment  be  affirmed. 

Judgment  affirmed. 

Followed,  7  W.  478  ;  1  Jones  260. 
Commented  on,  1  II.  102. 


McGirr  against  Aaron. 

A  gift  to  a  charity  shall  not  fail  for  the  want  of  a  trustee,  but  vest  as  soon 
as  the  charity  has  acquired  a  capacity  to  take. 

T.  B.,  In  his  last  will,  made  the  following  devise:  "I  give  and  bequeath 
all  my  real  estate  to  wit,  &c.,  to  a  Roman  Catholic  priest,  that  shall  succeed 
me  in  this  said  place,  to  be  entailed  to  him  and  to  his  successors,  in  trust, 
and  for  the  use  herein  mentioned,  in  succession,  for  ever,  &c.,  &c.,  and  fur- 
ther, it  is  my  will,  that  the  priest  for  the  time  being,  shall  transmit  the 
land  so  left  him  as  aforesaid,  to  his  successor,  clear  of  all  encumbrances  as 
aforesaid,"  &c.  //eW,  that  the  devise  was  for  the  maintenance  of  a  priest, 
but  in  ease  of  the  congregation,  and  for  its  benefit  alone.  And  the  congre- 
gation is  entitled  to  take  the  profits  in  the  first  instance,  but  subject  to  a  riuht 
in  the  priest,  to  have  them  applied  to  his  support. 

Tins  was  an  ejectment  originally  brought  in  the  Court  of  Com- 
mon Pleas  of  Westmoreland  county,  and  removed  by  habeas  corpus 
cum  causa,  to  the  Circuit  Court  of  the  same  county,  where  it  was 
tried  before  Huston,  Justice. 

The  plaintiff,  an  inducted  Roman  Catholic  priest,  on  the  trial  of 
the  cause,  claimed  the  premises  in  controversy,  two  tracts  of  land 
in  Westmoreland  county,  as  answering  the  description  of  the 
devisee  under  the  will  of  the  Rev.  Theodorus  Browers.  dated  the 
23d  October  1700,  and  duly  proved  in  the  register's  office. 

1  P.  &  W.— 4 


50  SUPREME  COURT  [Pittsburgh 

[McGirr  v.  Aaron.] 

The  only  part  of  the  will  which  is  material  to  an  understanding 
of  the  case  is  as  follows : 

"  Item,  I  give  and  bequeath  all  my  real  estate,  viz. :  my  place  on 
which  I  now  live,  called  '  Sportsman's  Hall,'  and  one  other  tract 
of  land  on  Loyalhanna  creek,  called  '  O'Neal's  Victory,'  with  their 
appurtenances,  to  a  Roman  Catholic  priest,  that  shall  succeed  me  in 
this  said  place,  to  be  entailed  to  him  and  to  his  successors,  in  trust, 
and  so  left  by  him  who  shall  succeed  me,  to  his  successors,  and  so 
in  trust,  for  the  use  herein  mentioned,  in  succession,  for  ever ;  and 
that  the  said  priest,  for  the  time  being,  shall  strictly  and  faithfully 
say  four  masses  each  and  every  year,  for  ever,  viz. :  one  for  the  soul 
of  the  Rev.  Theodorus  Browers,  on  the  day  of  his  death,  in  each 
and  every  year,  for  ever,  and  three  others  the  following  days  in  each 
year  as  aforesaid,  at  the  request  of  the  Rev.  Theodorus  Browers ; 
and  further,  it  is  my  will,  that  the  priest,  for  the  time  being,  shall 
transmit  the  land  so  left  him  in  trust  as  aforesaid,  to  his  successor, 
clear  of  all  encumbrances  as  aforesaid;  and  I  nominate,  constitute 
and  appoint  Christian  Reffner,  and  Henry  Coons,  executors  to  this 
my  last  will  and  testament,  this  twenty-fourth  day  of  October,  in 
the  year  of  our  Lord,  one  thousand  seven  hundred  and  ninety." 

After  the  death  of  the  testator,  the  congregation  (under  the  im- 
pression that  a  devise  to  an  officiating  priest,  and  his  successors,  not 
being  a  corporation  sole,  was  against  the  policy  of  the  law,  and  void 
as  tending  to  a  perpetuity,  and  therefore  the  legal  title  would 
escheat  to  the  Commonwealth),  applied  to  the  legislature  to  make  a 
provision,  by  which  the  intention  of  the  testator  should  be  carried 
into  effect;  which  produced  the  Act  of  the  7th  March  1821,  vesting 
the  title  in  several  trustees  of  the  congregation,  and  their  successors; 
who  leased  the  same  to  George  Aaron,  who  is  the  defendant  in  this 
suit.  In  the  Circuit  Court,  according  to  the  opinion  of  the  judge 
who  tried  the  cause,  the  jury  found  a  verdict  for  the  defendant. 

The  plaintiff,  by  his  attorneys,  Alexander  W.  Foster,  John  B. 
AL>j-at!<l<r,  Joseph  If.  Ktihns  and  James  Nichols,  Esquires, 
moved  the  court  for  a  new  trial,  for  the  following  reasons : 

1st.  The  court,  on  the  trial  of  the  said  cause,  erred  in  directing 
the  jury,  that  the  Rev.  Terrence  McGirr,  the  plaintiff  in  said  cause 
(admitted  and  proved  to  be  the  successor  of  the  Rev.  Theodorus 
Browers,  in  the  pastoral  office),  was  not  entitled  to  the  possession  of 
the  tract  of  land  in  dispute,  called  "O'Neal's  Victory,"  under  the 
will  of  the  said  Theodorus  Browers,  and  of  the  Act  of  Assembly  of 
the  7th  of  March  1H21. 

2d.  The  court,  on  the  trial  of  the  said  cause,  erred  in  directing 
the  jury,  that  the  devise,  in  the  last  will  and  testament  of  the  Rev. 
Theodorus  Browers,  of  the  two  tracts  of  land,  called  "  Sportsman's 
Hall."  and  "O'Neal's  Victory,"  was  intended  for  the  benefit  of  the 
congregation,  and  that  the  trustees  of  the  congregation,  appointed 


Sept.  1829.]  OF  PENNSYLVANIA.  51 

[McGirr  v.  Aaron.] 

under  the  Act  of  Assembly  of  the  7th  of  March  1821,  were  entitled 
to  retain  the  possession,  against  the  successor  of  the  Rev.  Theodorus 
Browers. 

3d.  The  court,  on  the  trial  of  the  said  cause,  erred  in  directing 
the  jury,  that  the  plaintiff,  the  Rev.  Terrence  McGirr,  though 
admitted  and  proved  to  be  the  successor  of  the  Rev.  Theodoras 
Browers,  in  the  pastoral  office,  was  not  entitled  to  recover  in  eject- 
ment against  the  lessee  of  the  trustees  of  the  congregation,  appointed 
under  the  act  of  the  7th  of  March  1821,  the  tract  of  land  called 
"  O'Neal's  Victory." 

Which  motion  was  overruled  by  the  court,  and  the  plaintiff 
appealed  from  the  decision. 

Nicholas,  Foster  and  Alexander ,  for  appellants. 
Coulter,  for  appellee,  whom  the  court  declined  to  hear. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  plaintiff,  an  inducted  Roman  Catholic  priest, 
claims  the  premises,  as  answering  the  description  of  the  devisee  in 
the  will  of  the  Rev.  Mr.  Browers.  The  defendant  holds  under  a 
lease  from  trustees  appointed  by  a  private  Act  of  Assembly,  to  exe- 
cute the  trusts  of  the  will,  before  the  congregation  had  obtained  its 
charter  of  incorporation.  Neither  party  doubts  the  right  of  the 
plaintiff  to  have  the  profits  applied  to  his  maintenance ;  and  the 
contest  is  consequently  about  the  right  to  the  immediate  manage- 
ment of  the  estate.  Were  the  devise  interpreted  strictly  according 
to  the  meaning  of  the  words,  it  would  be  impossible  to  carry  the 
intention  of  the  testator  into  effect,  for  want  of  trustees  to  perpetu- 
ate the  application  of  his  bounty  to  the  successive  objects  of  it.  A 
devise  to  an  officiating  priest  and  his  successor,  not  being  a  corpora- 
tion sole,  is  against  the  policy  of  the  law,  and  void,  as  tending  to  a 
perpetuity ;  and  this  was  the  reason,  I  presume,  why  the  legal  title, 
which  it  was  supposed  had  escheated  to  the  Commonwealth,  was 
vested  in  trustees  for  the  uses  declared  in  the  will.  But  we  arc  to 
interpret  this  devise  as  if  the  legislature  had  not  interfered ;  and 
we  can  prevent  it  from  failing  of  effect  for  want  of  a  trustee,  only 
by  holding,  in  accordance  with  what,  notwithstanding  the  literal 
meaning  of  the  words,  was  undoubtedly  the  actual  intent,  that  the 
devise  was  for  the  maintenance  of  a  priest,  but  in  ease  of  the  con- 
gregation ;  and  consequently  for  his  benefit  alone.  Now,  although 
the  congregation  was  not  incorporated  at  the  death  of  Mr.  Browers, 
yet  by  the  decisions  of  the  court,  a  gift  to  a  charity  shall  not  fail  for 
the  want  of  a  trustee,  but  vest  as  sdon  as  the  charity  has  acquired  a 
capacity  to  take.  But  before  the  congregation  had  acquired  that 
capacity,  the  legislature  had  vested  the  title  in  trustees,  under  whom 
the  defendant  claims.  It  is  unnecessary  to  inquire  into  the  conse- 
quences of  this  act,  as  the  legislature  interfered  no  farther  than  to 


52  SUPREME  COURT  [P-ittslurgh 

[McGirr  v.  Aaron.] 

vest  in  those  trustees  whatever  might  have  escheated  to  the  Com- 
monwealth, without  at  all  meaning  to  alter  the  trusts  in  the  will. 
But  there  was  in  fact  no  escheat,  the  gift  being  sustainable  on  prin- 
ciples defined  in  former  decisions  of  this  court ;  and  consequently 
there  was  nothing  on  which  the  act  could  operate.  That  matter 
being  disposed  of,  it  follows  that  the  congregation,  either  as  having 
itself  the  legal  title,  or  as  standing  in  the  relation  of  cestui  que 
trust  to  the  lessors  of  the  defendant,  is  entitled  to  take  the  profits 
in  the  first  instance,  but  subject  to  a  right  in  the  plaintiff  to  have 
them  applied  to  his  support ;  and  the  exceptions  to  the  verdict, 
therefore,  are  not  sustained. 

Judgment  affirmed. 

Referred  to.  Briirhtly's  Rep.  354,  &c. ;  9  Wr.  28  ;  1  Smith  199 ;  13  Id.  468. 
Recognised,  14  Smith  99. 
Followed,  4  C.  38  ;  6  Id.  436. 


The  Commonwealth  against  Family's  Adm'rs. 

The  account  of  a  public  officer,  settled  by  the  auditor-general,  and  approved 
by  the  state  treasurer,  and  duly  certified  by  the  auditor-general  to  be  a  true 
copy  from  the  records  of  his  office,  is,  prima  facie,  sufficient  evidence  to  enable 
the  Commonwealth  to  recover  the  balance  due  by  such  officer,  in  a  suit 
brought  on  his  official  bond  against  his  surety. 

WHIT  of  error  to  Crawford  county,  to  remove  the  record  of  a 
suit,  brought  in  the  Court  of  Common  Pleas  by  the  Commonwealth 
against  the  administrators  of  Patrick  Farrelly,  deceased. 

The  defendant's  intestate,  Farrelly,  was  one  of  the  sureties  of 
Richard  Bean,  in  a  bond  to  the  Commonwealth,  in  the  sum  of 
$4000,  dated  8th  of  February  1819,  conditioned  that  the  said  Bean, 
who  had  been  commissioned  Brigade  Inspector  of  the  Sixteenth 
Division  Pennsylvania  militia,  by  commission  dated  loth  October 
1H18,  should  faithfully  execute  the  duties  of  said  office,  and  among 
other  duties,  "should  from  time  to  time,  well  and  truly  account  for 
all  moneys  which  may  come  to  his  hands,  in  virtue  of  said  office, 
and  pay  over  any  balance  which  may  be  ascertained  by  the  proper 
authorities  to  be  lawfully  due  by  him."  A  breach  was  assigned  in 
the  declaration  that  moneys  had  come  to  the  hands  of  the  said  Bean, 
to  the  amount  of  §01 :2.4o,  as  per  account  passed  by  the  auditor-gen- 
eral and  state  treasurer,  17th  of  March  18-0,  which  he  had  refused 
to  pay  over,  &c. 

I'leas  by  defendant :  That  Bean  had  not  broken  the  condition  of 
the  said  bond,  and  covenants  performed;  replications  by  plaintiffs 
and  issues. 


Sept.  1829.]  OF  PENNSYLVANIA. 

[Commonwealth  ».  Farrelly's  Adm'rs.] 

On  the  trial,  the  Commonwealth's  counsel  gave  in  evidence  the 
bond,  and  the  following  account  duly  certified  under  seal,  by  the 
auditor-general,  to  be  a  true  copy  talcen  from  the  records  of  his 
office,  viz : 

Richard  Bean,  Inspector,  2d  brigade,  16th  division,  to  the  Common- 
wealth of  Pennsylvania,  Dr.  For  amount  of  fines  returned  by  his 
predecessor.  William  Clark,  late  inspector  of  said  brigade,  viz : 

William  Shannon,  constable,  fines  of  1815,    $32.50 


Andrew  Clark, 
George  Kelly, 
Abraham  Looper, 
Thompson  Clark, 
George  Kelly, 
Henry  Stewart, 
Thompson  Clark, 
Thompson  Clark, 
Abraham  Looper, 


1810,       29.95 
88.00 

"  1.00 

"  38.00 

spring  "         1817,    172.00 

77.00 

04.00 

fall     "  54.00 

"  50.00 


§012.45 

Settled  and  entered,         GEO.  BRYAN. 
Auditor-general's  office,  17th  March  1820. 

Approved  and  entered,     RICHARD  M.  GRAIN. 
Treasury  office,  17th  March  1820. 

Here  the  plaintiff  closed  :  and  the  court  below  instructed  the  jury, 
"that  the  account  was  not  of  itself  sufficient  to  show  a  forfeiture  of 
the  bond."  To  which  opinion  the  plaintiff's  counsel  excepted,  and 
in  this  court  assigned  the  same  for  error. 

Dcrrickson,  for  the  Commonwealth. — After  referring  to  the  Act 
of  28th  March  1814,  relative  to  the  duties  of  a  brigade  inspector, 
and  the  Act  of  the  30th  March  1811,  Purd.  Dig.  090,  tit.  Public 
Accounts,  which  directs  the  mode  of  settling  officers'  accounts  by 
the  auditor-general  and  state  treasurer,  and  contending  that  the 
account  was  not  only  prima  facie  evidence,  but  conclusive  upon 
Bean  and  his  surety,  was  stopped  by  the  court,  who  desired  to  hear 
the  counsel  on  the  other  side. 

S.  B.  Foster,  for  defendant  in  error,  contended  that  as  the  ac- 
count consisted  entirely  of  fines  and  forfeitures,  which  accrued 
previous  to  Bean's  coming  into  office,  it  was  a  charge  for  which  his 
predecessor  only  was  liable,  unless  the  Commonwealth  would  show 
by  testimony  debars,  the  account  and  certificates  of  the  auditor- 
general,  that  the  money  had  actually  come  into  Bean's  hands  :  that 
the  bond  was  not  to  have  a  retrospective  but  a  prospective  opera- 


54  SUPREME  COURT  [Pittsburgh 

[Commonwealth  v.  Farrelly's  Adm'rs.j 

tion,  and  that  the  bail  consequently  could  not  be  liable.     He  cited 
9  Wheat.  680  ;  9  Cranch  212. 

The  court  would  not  hear  DerricTcson  in  reply,  and  reversed  the 
judgment  of  the  court  below. 

Followed,  8  W.  63. 


McBride   against  Hoey. 

IN    ERROR. 

A  purchaser  of  unseated  lands,  sold  for  the  payment  of  a  direct  tax,  in  pur- 
suance of  the  Act  of  Congress,  and  having  in  his  possession  a  deed  from 
the  collector,  who  was  authorized  to  make  the  sale,  has  such  a  right  as  will 
authorize  him  to  redeem  the  same  lands,  from  a  person  who  had  purchased 
them  at  a  treasurer's  sale,  for  taxes,  made  in  pursuance  of  the  Act  of  As- 
sembly. 

WILLIAM  HOEY,  who  was  the  plaintiff  below,  brought  this  action  of 
ejectment  in  the  Court  of  Common  Pleas  of  Mercer  county,  to  re- 
cover from  James  McBride  a  tract  of  land,  No.  41,  in  the  third 
donation  district,  containing  five  hundred  acres. 

The  plaintiff  claimed  title  by  virtue  of  a  deed  made  to  him  by 
the  treasurer  of  Mercer  county,  on  a  sale  for  taxes  ;  and  in  order  to 
show  the  sale  by  said  treasurer,  gave  in  evidence  the  assessment  of 
a  county  and  road  tax  upon  the  land,  for  the  year  1820  ;  the  as- 
sessment of  a  road  tax  for  the  year  1821,  and  the  sale  book  fur- 
nished by  the  commissioners  to  the  treasurer  ;  and  then  offered  the 
deed  from  the  treasurer  to  the  plaintiff,  William  Hoey,  and  his  bond 
to  the  treasurer,  for  the  surplus  purchase-money,  after  the  payment 
of  the  taxes  due  upon  the  land.  The  defendant  objected  to  the 
evidence  of  the  deed  and  bond,  because  the  plaintiff  had  not  shown 
that  a  county  tax  had  been  assessed  on  the  land  for  the  year  1821, 
and  the  bond  was  for  too  small  a  sum  by  33.50  ;  therefore,  the  deed 
was  void.  The  evidence  being  admitted  by  the  court,  the  defend- 
ant excepted  to  the  opinion. 

The  defendant  then  offered  in  evidence  a  receipt  of  the  treasurer 
of  Mercer  county,  to  William  Clark,  for  $27.03^,  dated  within  two 
years  of  the  time  of  the  sale  to  the  plaintiff,  and  which  was  paid  to 
redeem  the  said  land  ;  and  in  order  to  show  that  William  Clark  had  a 
right  to  redeem,  offered  in  evidence  a  deed  from  Thcophilus  T.  Ware, 
collector  of  the  revenue  in  the  10th  District  of  Pennsylvania,  to 
William  Clark,  for  said  tract  of  land,  dated  3d  July  1821  ;  which 
evidence  was  objected  to  by  the  plaintiff,  and  rejected  by  the  court, 
who  sealed  a  second  bill  of  exceptions. 

A  verdict  and  judgment  were  rendered  for  the  plaintiff. 


Sept.  1829.]  OF  PENNSYLVANIA.  55 

[McBride  v.  Hoey.] 

It  was  here  assigned  for  error  that  the  court  below  admitted  the 
evidence  mentioned  in  the  first  bill  of  exceptions,  and  rejected  that 
mentioned  in  the  second. 

His  honor,  the  chief  justice,  mentioned  that  the  opinion  of  the 
court  upon  the  validity  of  the  treasurer's  sale  to  the  plaintiff  below, 
had  been  formed  upon  a  former  argument  of  the  cause,  and  now 
desired  the  counsel  to  confine  their  remarks  to  the  second  bill  of 
exceptions. 

Bredin  and  Baldwin,  for  plaintiff  in  error. — Any  person  having 
a  claim,  or  equitable  interest  in  land,  which  has  been  sold  for  taxes, 
may  redeem  it  by  complying  with  the  provisions  of  the  Act  of  As- 
sembly for  that  purpose ;  as  a  judgment  creditor,  mortgagor  or 
mortgagee ;  a  tenant  in  common,  or  heir-at-law  for  his  co-tenant  or 
co-heir;  a  son  for  his  father,  or  an  agent  for  his  principal.  But 
any  one  who  has  color  of  title,  has  clearly  a  right  to  redeem  :  here 
Clark,  the  claimant  under  the  deed  from  Ware,  had  at  least  a  color 
of  title,  and  such  a  one  as  would  entitle  him  to  hold  the  five  hun- 
dred acres  by  the  Statute  of  Limitations,  although  but  a  small  part 
of  the  tract  may  have  been  actually  cleared  and  occupied.  Even 
if  he  had  no  deed,  his  bare  possession  was  a  sufficient  title  to  autho- 
rize him  to  redeem.  It  is  immaterial  to  the  purchaser  at  the  trea- 
surer's sale,  who  redeems,  provided  the  taxes  and  costs,  and  his 
money,  and  twenty-five  per  cent,  thereon,  are  paid  to  him. 

Banks  and  Pearson,  for  defendant  in  error. — The  deed  and 
receipt  were  not  evidence.  In  ejectment,  in  Pennsylvania,  a  de- 
fendant may  rest  upon  his  possession  ;  he  may  show  title  in  himself, 
or  in  a  third  person,  but  in  doing  so,  he  must  make  out  that  title 
by  the  usual  and  well-established  rules  of  evidence ;  and  the  title 
thus  relied  on,  must  be  a  good  subsisting  title  at  the  time :  the 
deed  of  an  individual  is  not  evidence  until  title  is  shown  in  the 
grantor :  Lessee  of  Peters  v.  Condron,  2  S.  &  11.  83 ;  II oak  r. 
Long,  10  Id.  10.  A  sheriff's  deed  is  not  evidence  against  a  stranger, 
until  the  judgment  and  execution  are  shown  :  Lessee  of  Wilson  r. 
McVeagh,  2  Yeates  87  ;  Run.  on  Eject.  117 ;  Weyand  v.  Tipton, 
5  S.  &  11.  332.  Title  must  also  be  shown  in  the  person  as  whose 
property  it  was  levied  and  sold:  Little  v.  Delancey,  5  Binn.  270  ; 
Kennedy  v.  Bogert,  7  S.  &  It.  98.  A  treasurer's  deed  is  not  evi- 
dence, unless  the  treasurer's  authority  for  making  sale  is  first 
shown  :  Blair  v.  Waggoner,  2  S.  &  II.  472  ;  Birch  r.  Fisher,  13 
Id.  208 ;  Wain  v.  Shearman,  8  Id.  359 ;  Stewart  v.  Shoenfelt,  13 
Id.  371-2. 

No  one  but  the  owner  at  the  time  of  the  sale  can  redeem  :  such 
is  the  provision  of  the  law  itself;  the  sale  vests  the  title  of  the  real 
owner  in  the  purchaser,  who  holds  that  title  defeasible  in  a  certain 
way,  and  by  the  owner  alone.  The  doctrine  contended  for  by  the 


56  SUPREME  COURT  OF  PA.       [Pittsburgh 

[McBride  v.  Hooy.] 

counsel  for  the  plaintiff  in  error,  would  enable  a  person  not  holding 
title,  to  divest  a  good  title,  which  cannot  be  the  law.  The  pur- 
chaser gives  a  bond  for  the  surplus  above  the  amount  of  the  taxes 
and  costs,  for  the  use  of  the  owner  of  the  land :  the  owner  has  a 
vested  interest  in  that  bond ;  can  a  stranger  avoid  his  right  to  its 
amount  ?  Could  he  give  a  receipt  for  it,  which  would  protect  the 
purchaser  against  the  owner?  Could  he  recover  from  the  pur- 
chaser the  amount  of  the  bond  ?  Certainly  not ;  and  he  cannot  do 
indirectly  what  he  cannot  do  directly :  he  cannot  cancel  the  bond 
by  redeeming  the  land,  when  he  cannot  do  it  by  receiving  the 
amount  thereof,  or  releasing  the  obligation.  The  owner,  upon  the 
redemption  of  the  land,  may  sustain  his  action  of  ejectment  against 
the  purchaser.  It  will  not  be  contended  that  the  title  here  shown, 
or  rather  offered  in  evidence,  would  enable  the  plaintiff  in  error  to 
sustain  his  action.  If  a  defendant  depends  on  his  title,  or  that  of  a 
third  person,  he  must  show  such  a  one  as  would  enable  him  or 
them,  if  plaintiffs,  to  recover  the  land,  otherwise  it  will  not  pro- 
tect him  in  the  possession. 

The  judgment  was  reversed,  and  a  venire  facias  de  novo 
awarded. 


CASES 

IN 

THE  SUPREME  COURT 

OF 

PENNSYLVANIA. 


CHAMBERSBURG— OCTOBER  TERM,  1829. 


Welsh  against  Bekey. 


IN    £RROR. 


A  mortgage  of  personal  property,  without  a  delivery  of  possession,  or  the 
other  indicia  of  ownership,  is  fraudulent  as  to  creditors,  and  upon  the  death 
of  the  mortgagor,  the  mortgagee  is  not  entitled  to  a  preference  over  the  other 
creditors,  to  have  his  debt  first  paid  out  of  the  proceeds  of  the  mortgaged 
property. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Franklin 
county. 

The  plaintiff  in  error  was  plaintiff  below  in  this  action,  which 
was  entered  to  try  whether  Jacob  Welsh  was  entitled  to  the  pro- 
ceeds of  the  sale  of  certain  personal  property  of  Richard  I  lay  den, 
deceased,  to  the  amount  of  his  debt,  in  preference  to  the  other  cred- 
itors of  said  deceased,  upon  the  jbllowing  statement  of  facts,  to  be 
considered  in  nature  of  a  special  verdict : 

On  the  7th  January  1825,  Richard  Ilayden  was  the  owner  of 
two  farms,  upon  one  of  which  he  resided,  together  witli  a  cropper, 
who  farmed  the  land ;  the  other  was  in  the  possession  of  a  tenant, 
who  farmed  it  upon  the  shares  ;  when,  in  consideration  that  the  said 
Jacob  Welsh  would  loan  to  the  said  Richard  Ilayden  the  sum  of 
$200,  the  following  agreement  was  entered  into  between  them  : 

"  Articles  of  agreement  made  and  concluded  the  7th  January 
1825,  between  Richard  Ilayden,  of  the  township  of  Washington, 
county  of  Franklin,  and  state  of  Pennsylvania,  of  the  one  part, 
and  Jacob  Welsh,  of  the  township,  county  and  state  aforesaid,  of  the 
other  part,  witncsseth  :  That  whereas  the  said  Richard  Ilayden  lias 
this  7th  January  1825,  received  from  the  said  Jacob  Welsh  an  order 
on  John  Fullerton  for  the  sum  of  §200,  which  sum,  when  received 

(57) 


58  SUPREME  COURT  [Chambersburg 

[Welsh  r.  Bekey.] 

by  the  said  Ilaydcn,  from  the  said  Fullerton,  the  said  Ilayden  is  to 
allow  the  said  Welsh  six  per  cent,  for  the  use  of  the  said  money 
until  paid ;  and  as  security  to  the  said  Welsh,  for  the  true  and 
faithful  payment  of  said  sum  of  $200  and  interest,  the  said  Ilayden 
doth  assign,  transfer  and  set  over  unto  the  said  Jacob  Welsh,  and 
to  his  heirs,  the  one-half  of  forty-eight  acres  of  wheat  and  rye,  now 
in  the  ground,  on  the  plantation  where  the  said  Ilayden  now  lives, 
and  the  one-half  of  forty-six  acres  of  wheat  and  rye,  now  in  the 
ground,  on  the  land  of  Ross's  heirs,  where  John  Young  now  lives, 
all  which  grain  in  the  ground  shall  be  and  remain  bound  for  the 
payment  of  the  said  sum  of  $200  and  interest ;  the  said  Ilayden  is 
to  take  care  of  said  grain,  keep  the  same  under  good  fence,  and 
from  being  destroyed  by  horses  and  other  cattle,  and  cut  and  haul 
and  thresh  the  same ;  and  the  said  Welsh  shall  have  his  money  out 
of  the  price  thereof  which  shall  be  at  his  direction,  and  under  his 
control  until  he  is  paid,  and  so  soon  as  he  is  paid,  then  this  article 
to  be  void  and  of  none  effect. 

*'  Witness  our  hands  and  seals  the  day  and  year  aforesaid. 

(Signed)   RICHARD  HAYDEN,  [SEAL]. 
JACOB  WELSH,        [SEAL]. 
Witness,  JOHN  FLANAGAN." 

On  the  14th  September  1825,  Richard  Ilayden  died.  The  grain 
on  the  farm  on  which  Ilayden  and  his  cropper  lived  was  cut  and 
remained  on  the  farm  till  he  died,  when  Jacob  Bekey,  his  executor, 
took  possession  of  it  and  sold  it.  The  grain  on  the  farm  on  which 
Young  lived  remained  in  his  possession  till  after  the  death  of  Ilay- 
den, when  it  was  threshed,  and  by  him  delivered  to  Bekey,  who  sold 
the  same.  The  proceeds  of  the  sale  of  the  said  grain  in  the  hands 
of  Jacob  Bckey,  is  more  than  sufficient  to  pay  the  claim  of  the 
plaintiff,  Jacob  Welsh,  if  he  is  entitled  to  a  preference.  The  estate 
of  said  Ilayden  is  insufficient  for  the  payment  of  all  his  debts. 

Upon  this  statement  of  facts,  the  court  below  (Thompson,  presi- 
dent), entered  judgment  for  the  defendant,  which  was  assigned  for 
error  in  this  court,  and  argued  by 

Chambers,  for  the  plaintiff  in  error,  who  said  that  the  only  ques- 
tion was  whether  the  transfer  was  void,  in  consequence  of  the  pos- 
session of  the  grain  not  having  been  delivered  to  Jacob  Welsh,  at 
the  time  of  the  assignment. 

The  transfer  was  good  to  effectuate  the  intention  of  th.e  parties. 

1.  Because  the  agreement  did  not  contemplate  an  immediate  de- 
livery of  the  thing  transferred. 

Whether  the  possession  of  goods  remaining  in  the  hands  of  the 
vendor  is  a  badge  of  fraud,  depends  upon  the  intention  of  the  par- 
tics  :  1  Dane's  Ab.  of  Am.  Law  Go'J.  There  must  be  fraudulent 
or  deceptive  purposes  in  view,  in  order  to  make  it  void :  Id.  630.  In 
the  case  of  an  absolute  sale,  the  possession  remaining  in  the  vendor 
is  inconsistent  with  the  agreement,  but,  in  this  case,  the  possession 


Oct.  1829.]  OF  PENNSYLVANIA.  59 

[Welsh  v,  Bekey.J 

remaining  in  the  assignor  was  consistent  with  the  agreement,  and 
therefore  valid :  Clow  v.  Woods,  5  S.  £  R.  276 ;  2  Stark.  Ev.  GIG ; 
Barrow  v.  Paxton,  5  Johns.  R.  258. 

2d.  Inasmuch  as  the  grain  was  not  susceptible  of  delivery  at  the 
time  the  transfer  was  executed,  the  transaction  was  riot  fraudulent, 
nor  the  transfer  void  under  the  Statute  of  13  Eliz.,  chap.  5  ;  but  a 
reasonable  time  after  harvest  should  be  allowed  for  the  delivery, 
which  was  not  allowed  in  consequence  of  the  death  of  Ilayden,  on 
the  14th  September  1825.  In  the  case  of  vessels  at  sea  being 
transferred,  a  reasonable  time  is  allowed  after  their  arrival  for  de- 
livery :  Morgan  v.  Biddle,  1  Yeates  3.  When  Ilayden  died,  "N^elsh 
was  entitled  to  the  lease  of  the  land,  or  his  money  out  of  it,  and 
therefore,  when  Bekey  received  the  money,  he  received  it  for  the 
use  of  Welsh,  and  should  account  for  it  in  this  action. 

3d.  The  possession  of  the  grain  never  was  in  Ilayden,  but  in  his 
tenants,  and  therefore  the  want  of  a  delivery  at  the  time  of  transfer 
to  Welsh,  was  not  even  prima  facie  evidence  of  fraud  ;  for  cred- 
itors in  that  case  would,  in  the  exercise  of  a  reasonable  prudence, 
inquire  farther  about  the  ownership  than  the  mere  appearance  of 
possession. 

4th.  This  transfer  is  sustainable,  on  the  ground  that  it  was  the 
assignment  of  a  rent,  and  therefore  of  a  chose  in  action.  In  this 
case,  the  farm  was  leased  on  the  shares,  and  that  share  was  a  rent 
for  which  the  landlord  might  distrain :  Dorsey  v.  Jackinan,  1  S.  & 
R.  52;  MS.  case  decided  at  Sunbury,  June  7th  1829. 

5th.  Although  this  transfer  may  have  been  void  against  creditors, 
yet  it  is  conclusive  against  Ilayden,  his  heirs,  executors  and  admin- 
istrators, and  the  defendant  being  his  executor,  cannot  sustain  this 
defence.  It  does  not  appear  by  the  special  verdict  that  there  is  any 
creditor  who  has  qualified  himself  to  make  this  defence  ;  the  validity 
of  the  transfer-  could  not  be  questioned  by  a  creditor,  until  he  has 
obtained  a  judgment  and  execution  for  his  debt:  3  Amer.  Dig.  309. 
Cited  Gilpin  v.  Davis,  2  Bibb  (Ky.)  41G. 

Crawford,  for  defendant  in  error. — It  does  not  appear  by  the 
agreement  that  the  possession  of  the  grain  was  not  to  be  delivered ; 
on  the  contrary,  a  fair  construction  of  it  is,  that  Welsh  was,  at  its 
execution,  to  be  placed  in  Ilayden's  situation  respecting  it,  and  he 
was  to  have  merely  a  supervision  over  the  grain,  that  it  might  be 
preserved  for  Welsh. 

The  possession  might,  in  some  degree  have  been  delivered :  the 
agreement  might  have  been  recorded;  notice  might  have  been  given 
to  the  tenant  that  he  was  to  consider  Welsh  as  his  landlord,  as  to 
this  grain.  Two  months  elapsed  from  the  harvest  of  this  grain  till 
the  death  of  Itayden,  within  which  time  possession  of  the  grain  in 
the  sheaf  or  in  the  bushel  might  have  been  delivered. 

The  transaction  was,  in  its  character,  deceptive.  Ilayden  resided 
on  the  laud,  and  after  the  execution  of  this  agreement,  may  have 


60  SUPREME  COURT  [Chambersburg 

[Welsh  r.  Bckoy.  I 

derived  credit  from  the  public  upon  the  faith  of  this  grain,  which 
appeared  to  be  his.  The  transaction  is  open  to  all  objections 
which  exist  against  the  validity  of  a  transfer  of  personal  property, 
without  a  delivery  of  possession. 

The  agreement  is  not  an  assignment  of  rent,  nor  was  it  intended 
by  the  parties  to  have  operated  as  such.  It  is  nothing  more  nor  less 
than  a  mortgage  of  the  grain,  and  so  designed ;  for  according  to  its 
own  terms,  it  was  to  be  void  upon  the  repayment  of  the  money. 

The  case  of  Clow  v.  Woods,  5  S.  &  R.  276,  seems  to  be  conclu- 
sively in  point  with  this  case.  The  delivery  of  possession  is  as 
necessary  to  the  validity  of  a  mortgage  of  goods,  as  of  an  absolute 
sale :  Cunningham  v.  Neville,  10  S.  &  R.  22,  where  it  is  also  said 
that  the  case  of  Barrow  v.  Paxton,  in  5  Johns.  R.  258,  is  not  sound 
law.  It  is  a  part  of  the  case  that  the  estate  of  Hayden  is  insolvent: 
this  is  therefore  virtually  a  contest  with  the  creditors. 

Chambers,  in  reply. — The  Statute  of  13th  Eliz.  provides  against 
contrivances  to  defraud,  delay  or  deceive  creditors ;  and  therefore 
if  the  whole  transaction  shows  that  the  parties  had  no  intention  to 
defraud  or  deceive,  it  is  a  valid  transfer :  2  Stra.  Ev.  621. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — This  transaction  was  evidently  intended  to  be  a 
mortgage  of  personal  property,  which,  when  the  mortgagor  retains 
the  possession,  -or  the  other  indicia  of  ownership,  was  declared  in 
Clow  v.  Woods,  to  be  fraudulent,  as  in  the  case  of  an  absolute  sale. 
That  the  rule  which  was  recognised  in  that  case,  rather  than 
established,  for  the  first  time,  ought  not  to  be  relaxed  on  grounds 
of  policy,  is  proved  by  the  fact,  that  a  sham  sale,  to  elude  creditors, 
has  become  the  common  and  successful  instrument  of  fraud;  so 
much  so,  indeed,  as  to  have  nearly  superseded  in  practice,  the  old 
abuse  of  the  remedy  under  the  insolvent  laws.  That  rule  is,  how- 
ever, founded  not  merely  in  policy,  but  early  established  authority. 
In  a  leading  case,  which  is  frequently  appealed  to  (Ryall  v.  Rplle, 
1  Wills.  200),  a  partner  in  a  brewery  mortgaged  his  share  in 
the  brew-house,  utensils  and  debts,  but  continued  to  carry  on  the 
business  as  before ;  and  it  was  held  that  a  mortgagee  of  goods  or 
choses  in  action,  being  the  true  owner,  ought  to  take  actual  pos- 
session, as  far  as  he  can,  of  the  goods,  or  the  key  of  the  warehouse, 
and  of  the  muniments  by  which  the  choses  in  action  may  be  reco- 
vered. How  closely  that  case  resembles  this,  will  be  perceived. 
Hayden  assigns  to  Welsh  the  moiety  of  a  crop  growing  on  the  farm 
where  he  resides,  and  the  moiety  of  another  crop  on  the  farm  where 
his  tenant  resides,  to  remain  bound  for  the  repayment  of  $200 ; 
and  it  is  stipulated  "that  Hayden  shall  take  care  of  the  crop 
while  growing,  cut,  thresh  and  carry  it  away,  under  the  direction 
and  contro.1  of  Welsh,  who  is  to  have  his  money  out  of  the  price 
of  it."  The  argument  that  the  assignment  is  of  a  rent  in  the 


Oct.  1829.]  OF  PENNSYLVANIA.  61 

[Welsh  v.  Bekey.] 

nature  of  chose  in  action,  is  without  force,  granting  the  fact  to  be 
BO  ;  because  the  assignment  of  a  chose  in  action  itself,  is  subject  to 
the  rule  which  requires  a  transfer  of  the  possession.  Did  the  parties 
leave  undone  that  which  might  serve  to  indicate  the  actual  owner  ? 
instead  of  substituting  the  mortgagee  for  the  mortgagor,  and  provid- 
ing for  a  transfer  of  the  possession  as  soon  as  it  might  be  delivered, 
consistently  with  the  bargain  with  the  cropper,  it  was  expressly 
stipulated  that  the  mortgagor  should  retain  the  crop  till  it  should  be 
sold  by  the  direction  of  the  mortgagee,  who  was  to  have  possession 
of  nothing  but  the  proceeds  of  it.  -  Taking  care  of  grain,  growing, 
reaping,  threshing  and  selling  it,  include  all  the  notorious  acts  of 
ownership  that  are  ordinarily  exercised  in  relation  to  this  species  of 
property ;  while  the  act  of  giving  directions,  is  a  matter  usually 
known  only  to  the  parties.  There  was  not  one  open  and  notorious 
act  to  be  done  by  Welsh  that  would  indicate  him  to  be  the  owner, 
or  that  wouhl  be  inconsistent  with  the  apparent  title  of  Hayden. 
The  fact  is,  the  parties  undertook  to  mortgage  the  property,  just  as 
if  it  were  a  tract  of  land  ;  and,  notwithstanding  the  admitted  purity 
of  their  intentions,  we  are  bound  to  say  the  transaction  cannot  be 
supported.  In  reply  to  the  argument  that  the  contract,  although 
fraudulent  as  to  third  persons,  is  good  between  the  parties,  it  is  pro- 
per to  remark  that  the  contest  with  the  executor  is  virtually  a  con- 
test with  the  creditors,  it  being  expressly  made  a  part  of  the  case 
that  the  estate  is  insolvent.  Judgment  affirmed. 

Referred  to,  infra,  473. 

Distinguished  and  approved,  2  P.  &  W.  271. 

Distinguished,  (J  Wr.  443. 


Shuman  and  Furst  against  Pfoutz. 


A  justice  of  the  peaee  has  power  to  supersede  an  execution  issued  by  him  ; 
and  such  supersodeas  will  exonerate  the  constable  from  liability. 

An  execution  issued  upon  a  judgment  out  of  the  Court  of  Common  Pleas, 
is  not  removed  into  this  court,  unless  specifically 'mentioned  in  the  pravipe 
and  writ  of  error. 

This  court  will  not  hear  the  first  allegation  of  error,  in  the  taxation  of  a 
bill  of  costs;  the  motion  to  correct  the  error  must  be  first  made  in  the  court 
below. 

THIS  was  a  writ  of  error  to  the  Common  Pleas  of  Perry  county. 

Shuman  and  Furst,  the  plaintiffs  in  error,  had  a  judgment  against 
Hopple,  upon  the  docket  of  Justice  Utter ;  an  execution  was  issued 
and  put  into  the  hands  of  Pfoutz,  the  defendant  in  error,  then  con- 
stable of  the  township,  who  made  a  levy  upon  the  personal  property 
of  Hopple,  after  which  he  received  a  written  notice  from  Justice 
Utter,  directing  him  to  restore  the  property  levied  to  Hopple,  and 
return  his  execution,  which  he  did.  Shuman  and  Furst  then  sued 


62  SUPREME  COURT  \_CJiamberslurg 

[Shuman  r.  Pfoutz.] 

him  for  so  doing,  and  claimed  the  amount  of  the  property  so  levied  ; 
the  cause  came  into  the  Common  Pleas  by  appeal,  where  a  verdict  and 
judgment  was  rendered  for  the  defendant,  upon  the  charge  of  the 
court  to  the  jury,  "  that  the  order  of  the  justice  to  the  constable, 
and  the  acceptance  of  the  return  by  him,  in  the  absence  of  fraud, 
did  acquit  the  defendant  from  legal  liability." 

Two  errors  were  assigned  in  this  court : 

1st.  The  court  erred  in  their  charge  to  the  jury. 

2d.  An  execution  issued  for  more  costs  than  were  recoverable  by 
the  defendant  in  the  court  below. 

Crcigh,  for  the  plaintiff  in  error. — A  certiorari  is  not  a  superse- 
deas  to  an  execution  unless  bail  is  given  by  the  plaintiff,  which  was 
not  done  in  this  case,  nor  even  then,  if  a  levy  has  been  made  before 
the  issuing  of  the  certiorari.  The  debt  of  the  plaintiffs,  Shuman 
and  Furst,  was  then  secured  by  a  legal  proceeding,  to.wit,  the  levy 
upon  personal  property ;  and  the  justice  had  no  legal  authority  to 
take  away  from  them  that  security.  And  if  the  order  of  the  justice 
to  the  constable  was  without  authority,  it  does  not  exonerate  him 
from  liability  :  Boyer  v.  Potts,  14  S.  &  R.  157 ;  Purd.  Dig.  455 ; 
§12,  Act  of  20th  March  1810. 

2d.  The  execution  issued  for  the  costs  of  the  original  suit  of  Shu- 
man and  Furst  against  Hopple,  for  which  there  was  no  judgment  in 
this  suit,  which  was  manifest  error. 

* 

Alexander,  for  defendant  in  error. — The  case  of  Sherby  against 
Fisher,  decided  by  this  court  at  the  last  term,  and  not  yet  reported, 
determines  this  case,  that  the  order  of  the  justice  is  a  justification 
of  the  constable. 

The  writ  of  error  does  not  bring  up  the  execution,  unless  spe- 
cially mentioned  in  the  writ ;  but,  at  all  events,  this  court  will  not 
hear  the  first  motion  to  correct  an  error  in  the  taxation  of  costs ; 
the  motion  must  be  first  made  in  the  Common  Pleas. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — In  consequence  of  an  execution  issued  by  Justice  Utter 
at  the  suit  of  the  plaintiffs,  against  a  certain  D.  C.  Hopple,  on  the 
loth  June  1821,  the  constable  (the  defendant  Pfoutz),  made  a  levy 
on  a  quantity  of  hay,  and  some  household  furniture  of  Hopple.  On 
the  next  day,  the  10th  June  1821,  Samuel  Utter,  the  justice,  by  a 
written  notice  to  the  constable,  directed  him,  in  case  lie  had  levied 
on  the  property  of  the  defendant,  to  restore  the  same  to  him,  and 
return  the  execution.  The  constable  did  so ;  and  a  suit  was  then 
brought  against  him,  "for,",as  the  records  state,  "  the  amount  of 
the  levy  on  the  above-stated  execution  ;"  which,  on  an  appeal,  was 
finally  tried  on  the  8th  June  1828,  and  a  verdict  and  judgment 
rendered  for  the  defendant.  At  the  trial,  the  court  below  charged 
the  jury,  "  that  the  supersedeas  and  acceptance  of  the  return  by  the 


Oct.  1829.]  OF  PENNSYLVANIA.  f.3 

[Shuman  r.  Pfoutz.] 

justice,  in  the  absence  of  all  alleged  fraud  or  imposition,  did  acquit 
the  defendant  of  legal  liability."  To  this  charge  the  counsel  of  the 
plaintiff  excepted,  and  has  assigned  two  errors  in  this  court.  1st. 
That  the  court  erred  in  their  charge  to  the  jury.  2d.  That  the 
execution  issued  for  costs  that  could  not  be  recovered  in  this  suit 
(they  not  being  costs  of  this  suit). 

We  are  decidedly  of  opinion,  that  in  the  above-stated  charge  of 
the  court  to  the  jury  there  was  no  error.  I  take  it,  a  justice  has  a 
right  to  withdraw  or  supersede  an  execution  issued  by  him  ;  if  he 
could  not,  it  would  lead  in  many  cases  to  injustice,  and  draw  the 
constable  into  difficulties.  Suppose  an  execution  has  been  issued 
before  the  stay  of  execution  is  out,  or  more  than  a  year  elapses 
before  it  has  been  issued,  or  the  amount  of  the  judgment  is  actually 
paid  to  the  plaintiff,  without  the  knowledge  of  the  justice,  or  the 
defendant  should  die,  and  the  justice  did  not  know  of  his  death  ;  or 
it  should  be  issued  perhaps  to  the  wrong  constable,  by  mistake ;  or 
special  bail  should,  under  the  act,  be  entered ;  or  an  appeal  taken 
within  the  time  limited,  or  should  be  otherwise  erroneous  ;  will  it 
be  contended  that  the  justice  cannot  recall  the  execution,  and  that 
the  constable  must,  at  all  hazards,  go  on  with  the  execution,  and 
render  himself  and  the  justice  responsible  ?  I  should  think  it  can- 
not. The  very  question  now  submitted  was,  I  think,  fully  con- 
sidered and  decided  by  this  court,  at  their  last  term  held  for  this 
district,  in  the  case  of  .Sherby  v.  Fisher,  in  which  Justice  Tod 
delivered  the  opinion  of  this  court.  In  that  case  Fisher  had  sued 
Sherby,  a  constable,  for  not  returning  an  execution  which  had  been 
placed  into  his  hands  by  a  justice;  this  execution  was  recalled  and 
withdrawn  by  the  justice  out  of  the  power  and  possession  of  the 
constable  after  he  had  made  a  levy ;  and  the  question  was,  whether 
the  constable  was  liable.  This  court  held  that  the  constable  was 
riot  liable,  and  that  he  was  not  to  inquire  into  the  reason  of  the 
justice  for  recalling  the  execution ;  but  as  the  Act  of  Assembly,  in 
more  than  one  case,  required  an  execution  to  be  returned,  as  where 
special  bail  was  entered  in  time,  or  an  appeal  taken  in  twenty  days, 
the  justice  could  supersede  the  execution,  and  the  constable  would 
not  be  liable.  I  presume  the  case  will  be  reported :  and  to  the 
opinion  delivered  in  that  case  I  refer  for  the  reasons  which  governed 
this  court. 

As  to  the  second  exception,  I  would  observe,  that  the  execution 
is  not  before  us,  but  if  it  was,  this  court  has  already  decided  that  we 
will  not  take  cognisance  of  an  exception  which  depends  on  matter 
of  fact.  The  court  below  should  have  been  applied  to,  in  the  first 
instance,  to  tax  the  bill  of  costs.  It  does  not  appear  that  this  was 
done,  but  we  are  now  asked  to  set  aside  the  execution,  because  it 
issued  for  costs  that  were  illegal ;  if  it  had  so  issued,  the  court  below, 
on  application,  would  have  corrected  it.  In  this  case,  we  are  of  the 
opinion,  that  the  judgment  should  be  affirmed. 

Judgment  and  execution  affirmed. 


64  SUPREME  COURT  [Chambcr»burff 


Clippinger  against  Miller. 


The  revival  of  a  judgment  by  an  amicable  scire  facias  post  annum  et  diem, 
creates  a  lien  upon  the  real  property  of  the  defendant,  acquired  after  the  entry 
of  the  original  judgment. 

A  scire  facias  continues  the  lien  of  a  judgment  upon  land,  although  the 
occupiers,  who  are  lessees  from  year  to  year  of  the  defendant,  have  not  had 
the  writ  served  upon  them. 

THE  facts  of  this  case  were  presented  to  the  Court  of  Common 
Pleas  of  Cumberland  county,  in  the  shape  of  a  special  verdict, 
which  was  removed  to  this  court  by  the  defendant  below  by  a  writ 
of  error. 

Robert  Miller,  Assignee  of 
Lyon  and  Webster, 


v. 


John      Clippinger,     Esq., 


In  the  Court  of  Common  Pleas  of 
Cumberland  county. 


High    Sheriff    of    the 

county  of  Cumberland. 

The  following  facts  are  agreed  on  by  the  parties  to  be  considered 
in  the  nature  of  a  special  verdict ;  either  party  to  be  at  liberty  to 
take  a  writ  of  error  within  twenty  days  after  judgment  may  be  ren- 
dered, but  not  afterwards.  September  22d  1804,  Lyon  &  Webster 
obtained  judgment  against  John  Creigh,  Jr.,  and  John  Creigh,  Sr., 
in  the  Circuit  Court  of  Cumberland  county,  No.  8,  of  March  term 
1804,  for  §532.11.  On  the  record  of  this  judgment  the  following 
entry  was  made:  "JExit  amicable  scire  facias,  No.  57,  to  August 
term  1817." 

May  1st  1817.  The  following  agreement  was  signed  by  A.  Ca- 
rothers,  Esq.,  as  attorney  for  Dr.  John  Creigh,  and  filed  of  record 
in  the  Court  of  Common  Pleas  of  Cumberland  county :  "  J.  S. 
Webster,  surviving  partner  of  the  late  firm  of  Lyon  &  Webster,  v. 
Dr.  John  Creigh,  surviving  John  Creigh,  Esq.,  deceased.  Amica- 
ble wire  facias  post  annum  ct  diem  to  revive  judgment.  Lyon  & 
Webster  v.  John  Creigh,  Jr.,  and  John  Creigh,  Sr. 

"  I,-  as  attorney  for  the  defendant,  agree  to  appear  to  this  amica- 
ble scire  facias  as  of  August  term  1817. 

(Signed)  A.  CAROTIIERS. 

"May  1st  1817." 

In  the  appearance  docket  of  the  Court  of  Common  Pleas  of  Cum- 
berland county,  to  August  term  1817,  are  the  following  entries : 


Oct.  1829.]  OF  PENNSYLVANIA.  65 

[Clippinger  v.  Miller.] 
John  S.  Webster,  sur-  ~)  No.  47,  August  Term  1817. 


viving  partner  of 
the  late  firm  of 
Lyon  &  Webster, 


v. 


Doctor  John  Creigh, 
surv.  John  Creigh, 
Esq.,  dec. 


"Am.  sci.  fa.  post  annum  et  diem  to  re- 
vive the  judgment  Lyon  &  Webster  against 
J.  Creigh,  Jr.  and  J.  Creigh,   Sr.,  May 
1st  1817,  per  agreement  filed  as  narr." 
"Judgment." 

"Origl.  No.  8,  March  1804,  Circuit  Court." 
'•'•Exit  am.  sci.  fa.  No.  108,  August  Term, 


1822." 

6th  June  1822,  the  following  agreement  was  signed  by  Doctor 
John  Creigh,  and  filed  of  record  in  the  Common  Pleas  of  Cumber- 
land county,  7th  June  1822  : 

"Lyon  &  Webster  v.  John  Creigh,  Esq.  Amicable  scire  facias 
to  revive  judgment  in  the  Court  of  Common  Pleas  of  Cumberland 
county.  I  appear  to  the  above  am.  sci.  fa.  to  revive  judgment,  and 
confess  judgment  thereon  to  the  plaintiff,  deducting  the  following 
payments,  viz. :  two  hundred  dollars  on  7th  March  1818,  one  hun- 
dred dollars  on  1st  August  1818,  one  hundred  dollars  on  the  10th 
August  1818,  and  two  hundred  dollars  on  28th  April  1820. 

Carlisle,  6th  June  1822.  JoilN  CREIGH,  [SEAL.] 

Attest,  Geo.  A.  Lyon." 

Under  the  authority  of  this  last  agreement,  the  .following  entry 
was  made  on  the  docket : 

Lyon  &  Webster    "j  "No.  108,  August  Term,  1822. 

v.  >      "Am.  sci.  fa.  to  revive  judgment  in  the  Court 

John  Creigh,  Esq.  J  of  Common  Pleas  of  Cumberland  county,  6th 
June  1822.  The  defendant  appears  to  this  am.  sci.  fa.  and  con- 
fesses judgment  thereon  to  the  plaintiff,  deducting  the  following 
payments,  to  wit:  two  hundred  dollars,  March  7th  1818;  one  hun- 
dred dollars,  1st  August  1818  ;  one  hundred  dollars,  10th  August 
1818;  two  hundred  dollars  on  the  28th  April  1820,  as  per  agree- 
ment filed.  Entered  7th  June  1822.  Origl.  57,  August  Term, 
1817.  "Judgment." 

"Exit  am.  sci.  fa.  No.  20,  August  Term,  1827." 

28th  April  1827,  Doctor  Creigh  signed  the  following  agreement: 
Lyon  &  Webster    1       In  the  Court  of  Common  Pleas  of  Cumberland 
v.  >  county.     Am.  sci.  fa.  to  revive  judgment,  No. 

John  Creigh,  Esq.  j  108,  of  August  Term,  1822.  1  appear  to  the 
above  am.  sci.  fa.  and  confess  judgment  thereon  in  favor  of  plain- 
tiff, as  of  this  date.  Witness  my  hand  and  seal,  the  28th  day  of 
April,  A.  D.  1827.  (Signed,)  JOHN  CREIGH,  [SKAL."] 

The  docket  entry  of  the  above  is  as  follows,  viz. : 
Lyon  &  Webster    J  No.  20  August  Term,  1827. 

v.  \      In  the  Court  of  Common  Pleas  of  Cumberland 

John  Creigh,  Esq.  J  county,  am.  sci.  fa.  to  revive  judgment.     The 

1  p.  &  \v._5 


66  SUPREME  COURT  [Chambersburg 

[Clippingcr  r.  Miller.] 

defendant  by  his  agreement  in  writing,  dated  28th  April  1827, 
appears  to  the  above  am.  sci.  fa.  and  confesses  judgment  to  the 
plaintiff.  (Agreement  filed  as  narr.) 

Entered  30th  April  1827.     Origl.  108.  August  Term,  1822. 

"Judgment." 

At  the  time  of  the  entry  of  the  judgments  in  favor  of  Lyon  & 
Webster  v.  John  Creigh,  Jr.  and  John  Creigh,  Sr.,  on  the  22d  Sep- 
tember 1804,  John  Creigh,  Jr.  and  John  Creigh,  Sr.,  each  had  real 
estate  amply  sufficient  to  pay  the  judgment,  which  estates  were  then 
unencumbered.  John  Creigh,  Jr.,  yet  holds  the  same  estate  he  held 
on  the  22d  September,  1804,  the  time  Lyon  &  Webster's  judgment 
was  entered,  and  John  Creigh.  Sr.,  held  his  until  his  death,  and  on 
the  1st  of  May,  1817,  John  Creigh,  Jr.,  was  residing  in  his  own 
house,  in  Landisburg,  and  the  estate  which  he  owned  at  that  time, 
which  now  lies  in  Cumberland  county,  was  occupied  and  possessed 
by  tenants. 

In  1814,  Doctor  John  Creigh  and  Andrew  Mateer  purchased  a 
tract  of  land  in  Silver  Spring  township,  Cumberland  county,  for 
something  above  312,000,  containing  two  hundred  and  thirty  acres, 
more  or  less,  which  they  held  as  tenants  in  common,  until  March 
1828,  when  it  was  sold  by  Sheriff  Clippinger,  as  hereinafter  stated. 
Between  1812  and  1814,  Doctor  John  Creigh  became  entitled  as 
one  of  the  heirs  of  John  Creigh,  Esq.,  deceased,  to  the  one-fifth  of 
a  house  and  lot  in  Carlisle;  one-fifth  of  a  piece  of  land  in  South 
Middleton  township,  containing  ninety-two  acres,  about  two  miles 
from  Carlisle ;  the  one-fifth  of  another  piece  of  land,  about  one 
mile  from  Carlisle;  and  the  one-fifth  of  an  out-lot  of  five  acres, 
which  he  held  until  sold  last  year  by  Sheriff  Clippinger,  as  herein- 
after stated.  Between  the  years  1800  and  1815,  Doctor  John 
Creigh  acquired  the  following  property  in  that  part  of  Cumberland 
county  which  now  composes  the  county  of  Perry,  to  wit:  a  lot  of 
ground  in  Landisburg,  with  a  log  house  on  it;  a  brick  house  and  lot 
of  ground  in  Landisburg;  one-fifth  of  a  tract  of  land,  containing 
about  three  hundred  and  seventy  acres,  in  Tyrone  township,  all  of 
which  he  yet  holds,  though  encumbered  by  judgments  against  him 
in  Perry  county,  to  more  than  their  value,  which  judgments  were 
entered  since  the  16th  September  1823,  the  time  of  the  judgment 
in  favor  of  the  Commonwealth  for  use,  &c.,  v.  Andrew  Mateer,  John 
Creigh  and  Henry  Quigley. 

10th  September  1823,  judgment  was  entered  against  Andrew 
Mateer,  John  Creigh  and  Henry  Quigley,  in  the  Common  Pleas  of 
Cumberland  county,  at  the  suit  of  the  Commonwealth  of  Pennsyl- 
vania, for  the  penalty  of  a  bond  given  by  defendants  to  the  Com- 
monwealth, by  direction  of  the  Court  of  Common  Pleas  of  Cumber- 
land county,  to  secure  the  repayments  of  moneys  received  by  A. 
Mateer  and  John  Creigh,  as  admistrators  pendentc  lite  of  John 
Huston,  deceased. 


Oct.  1829.]  OF  PENNSYLVANIA.  67 

[Clippinger  ».  Miller.] 

A  scire  facias  issued  on  this  judgment,  in  favor  of  Huston's 
executors,  on  the  llth  April  1827,  a  verdict  was  given  in  the  Cir- 
cuit Court  of  Cumberland  county,  against  A.  Mateer,  John  Creigh 
and  Henry  Quigley,  executors,  for  $15,600.  On  this  scire  facias, 
and  on  the  3d  of  November  1827,  judgment  was  rendered  on  said 
verdict  by  the  Supreme  Court,  against  John  Creigh  and  Andrew 
Mateer,  generally,  and  with  leave  to  take  out  execution  against  the 
lands  of  Henry  Quigley,  which  were  bound  by  the  judgment 
entered  on  the  16th  September  1823. 

On  21st  March  1828,  John  Clippinger,  Esq.,  sheriff  of  Cum- 
berland county,  sold  the  following  property  on  a  venditioni  ex- 
ponas  issued  out  of  the  Circuit  Court  of  said  county,  at  the  suit 
of  Huston's  Executors  v.  John  Creigh  and  Andrew  Mateer,  No. 
2,  of  March  term  1828,  viz. :  A  tract  of  land  in  Silver  Spring 
township,  Cumberland  county,  containing  two  hundred  and  thirty 
acres,  sold  as  the  property  of  John  Creigh  and  Andrew  Mateer  to 
William  Ramsey,  Esq.,  for  $4000.  A  tract  of  land,  containing 
one  hundred  and  twenty  acres,  sold  as  the  property  of  Andrew 
Mateer  to  William  Ramsey,  Esq.,  for  $2000.  A  tract  of  land, 
containing  nineteen  acres,  with  a  forge  seat,  sold  as  the  property 
of  A.  Mateer  to  William  Ramsey,  Esq.,  for  $1000.  A  tract  of 
land,  containing  two  hundred  and  fifty-four  acres,  sold  as  the  pro- 
perty of  A.  Mateer  to  William  Ramsey,  Esq.,  for  $350.  A  lot 
of  ground,  sold  as  the  property  of  A.  Mateer  to  William  Ramsey, 
Esq.,  for  $70.  Two  lots  of  ground,  sold  as  the  property  of  A. 
Mateer  to  William  Ramsey,  Esq.,  for  $100.  A  lot  of  ground,  sold 
as  the  property  of  A.  Mateer  to  William  Ramsey,  Esq.,  for  $50. 
The  one-fifth  part  of  a  house  and  lot  in  Carlisle,  sold  as  the  pro- 
perty of  Dr.  John  Creigh  to  John  D.  Creigh,  Esq.,  for  $350. 
The  one-fifth  part  of  fifty  acres  of  land  within  a  mile  of  Carlisle, 
sold  as  the  property  of  Dr.  John  Creigh  to  John  D.  Creigh,  Esq., 
for  $151.  The  one-fifth  part  of  a  five  acre  lot,  sold  as  the  pro- 
perty of  Dr.  John  Creigh  to  John  D.  Creigli,  Esq.,  for  $30. 

If  upon  the  within  and  foregoing  statement  of  facts,  the  court 
shall  be  of  opinion  that  Huston's  executors,  or  those  claiming  under 
them,  are  entitled  to  receive  the  proceeds  of  the  sales  made  by 
Sheriff  Clippinger  of  Dr.  Creigh's  interest  in  the  properties  men- 
tioned, to  the  exclusion  of  Lyon  &  Webster,  or  those  claiming 
under  them,  then  judgment  is  to  be  entered  for  the  defendant. 
But  if  the  court  should  be  of  opinion  that  the  judgment  in  favor 
of  Lyon  &  Webster  is  entitled  to  a  preference,  and  that  the  balance 
due  thereon  should  be  paid  out  of  the  moneys  arising  from  the 
sales  of  Dr.  Creigh's  interests  in  said  properties  so  as  aforesaid, 
made  by  Sheriff*  Clippinger,  then  judgment  is  to  be  entered  in 
favor  of  the  plaintiff,  for  $401.23,  with  interest  from  the  30th 
September  1828 ;  being  the  balance  due  on  Lyon  &  Webster's 
judgment,  after  deducting  $350  paid  by  Sheriff  Clippinger,  in 


68  SUPREME  COURT  [Chambenbwrg 

[Clippinger  v.  Miller.] 

April  1828,  out  of  the  moneys  arising  from  the  sales  made  of  Dr. 
Creigh's  property  to  John  D.  Creigh,  Esq.,  as  within  stated. 

After  argument,  the  Court  of  Common  Pleas  (Reed,  president), 
gave  judgment  for  the  plaintiff,  which  was  assigned  for  error  in 
this  court. 

Watts,  for  plaintiff  in  error. — Three  propositions  which  arise 
out  of  the  facts  in  this  case,  are  contended  for  by  the  plaintiff  in 
error : 

1st.  That  the  revival  of  a  judgment  by  an  amicable  scire  facias 
p.  a.  et  d.  does  not  create  a  lien  upon  the  property  of  the  defend- 
ant, acquired  after  the  original  judgment  was  entered. 

2d.  That  no  scire  facias  either  creates  or  continues  a  lien  upon 
land,  unless  the  terre-tenants  or  persons  occupying  the  lands,  are 
made  parties  to  the  same,  or  have  the  writ  served  upon  them. 

3d.  If  the  plaintiffs  are  entitled  to  the  moneys  now  in  dispute, 
Huston's  administrators  are  entitled  to  an  assignment  of  their 
judgment,  which  is  a  lien  upon  lands,  which  the  judgment  of 
Huston's  administrators  is  not. 

In  order  to  understand  the  consequences  and  effects  of  a  judgment 
upon  a  writ  of  scire  facias,  it  is  necessary  to  know  what  it  contains, 
and  what  it  demands.  It  contains  a  recital,  that  a  judgment  had 
been  obtained  at  a  certain  term,  which  yet  remains  unsatisfied,  and 
demands  that  the  defendant  shall  appear  and  show  cause  why 
execution  should  not  issue ;  the  judgment  can  be  for  nothing  but 
what  the  writ  demands  ;  it  is  "  the  sentence  of  the  law,  pronounced 
by  the  court  upon  matters  contained  in  the  record."  It  does  not 
partake  of  the  nature  of  an  original  action,  in  regard  to  the  exten- 
sion of  the  lien  of  the  original  judgment.  When  money  is  loaned 
by  one  man  to  another,  and  the  lender  takes  a  judgment  for  the 
amount,  he  does  it  upon  the  faith  of  the  property  which  the  bor- 
rower has  at  the  time ;  and  policy  does  not  require  that  the  security 
should  be  increased.  Although  it  has  been  said  by  our  judges, 
that  a  scire  facias  partakes  of  the  nature  of  an  original  action, 
for  certain  purposes ;  yet  if  a  judgment  upon  it  embraces  in  its 
lien  land  not  originally  bound,  there  is  no  particular  in  which  it 
differs  at  all.  In  the  case  of  Colhoun  v.  Snider,  6  Binn.  135,  Ycatcs, 
Justice,  speaking  of  judgment,  says,  "The  lien  attaches  at  the 
moment  of  entry,  and  I  can  have  no  idea  of  its  shutting  at  one 
period  and  opening  at  another,  so  as  to  embrace,  of  itself  merely, 
property  not  originally  bound.  Its  effects  are  immediate,  and  must 
be  known  and  ascertained,  when  the  judgment  is  given,  and  cannot 
depend  upon  subsequent  events,  unless  it  has  been  so  provided  by 
positive  law."  And  in  the  case  of  Fries  v.  Watson,  5  S.  &  11. 
2'20,  Chief  Justice  Tilghman  says,  "  I  know  that  in  strictness  a 
scire  facias  is  not  an  action,  but  a  demand  of  execution  ;"  and  when 
speaking  of  its  object,  he  says  it  is  "  the  obtaining  the  fruits  of  the 


Oct.  1829.]  OF  PENNSYLVANIA.  69 

[Clippinger  v.  Miller.] 

original  judgment."  "  The  effects  of  a  scire  facias  is  to  enforce  a 
lien."  Morton  v.  Croghan,  20  Johns.  R.  106 ;  7  S.  &  R.  328  ;  1 
Peters  446-9. 

The  third  section  of  the  Act  of  4th  April  1798,  seems  to  be  con- 
clusive of  this  point.  It  is  alone  by  the  authority  of  this  act  that 
the  lien  of  a  judgment  can  be  continued ;  and  it  provides  that  the 
scire  facias  shall  be  served  upon  "  the  terre-tenants  or  persons  occu- 
pying the  real  estate  bound  by  the  judgment  and  on  the  defend- 
ant." The  whole  act  provides  for  the  continuance  of  a  lien  upon 
land  already  bound;  the  legislature  never  seeming  to  contemplate 
that  any  other  than  the  land  originally  bound  should  be  embraced 
within  the  operation  of  the  writ  of  scire  facias. 

The  Act  of  Assembly  provides  that  "  all  such  writs  of  scire  facias 
shall  be  served  on  the  terre-tenants  or  persons  occupying  the  real 
estate  bound  by  the  judgment,  and  also  where  he  or  they  can  be 
found  on  the  defendant  or  defendants."  In  this  case  it  is  expressly 
found  that  the  lands,  out  of  which  the  money  now  in  dispute  was 
made,  was  in  the  possession  of  tenants,  and  that  the  writs  of  scire 
facias  were  not  served  upon  them  :  2  Saund.  7,  n.  9,  is  the  author- 
ity cited  in  the  case  of  Chahoon  v.  Ilollenbach,  for  the  position  that 
occupiers  are  not  terre-tenants.  In  England  I  admit  it  is  so  ;  but 
our  Act  of  Assembly  is  in  its  terms  positive ;  and  if  those  terms  be 
disregarded,  the  proceeding  is  ineffectual. 

Huston's  administrators  and  Lyon  and  Webster  are  both  cred- 
itors of  John  Creigh  ;  we  have  but  one  fund  out  of  which  our  debt 
can  be  paid ;  they  have  two,  and  ask,  in  this  suit,  to  take  the  only 
fund  which  can  be  appropriated  to  the  payment  of  our  debt.  If 
the  first  two  points  should  be  against  us,  the  court  will  direct  their 
judgment  to  be  assigned  to  us,  that  we  may  be  enabled  to  collect 
our  debt  out  of  the  fund  upon  which  we  have  now  no  lien. 

Lyon  and  Carothers  for  defendant  in  error. — The  lien  of  a  judg- 
ment obtained  upon  a  scire  facias  post  annum  et  diem,  is  not  lim- 
ited to  the  land  bound  by  the  original  judgment.  To  authorize  such 
a  limitation  of  the  lien,  the  scire  facias  must  be  special,  praying 
execution  only  of  those  particular  lands,  as  in  scire  facias  on  a 
mortgage ;  or  the  judgment  of  the  court  must  be  specially  so 
entered.  Where  that  is  not  the  case,  the  judgment  entered  must 
be  considered  a  new  general  judgment,  with  all  the  incidents  and 
qualities  of  a  judgment  obtained  in  action  of  debt  on  a  bond.  A 
defendant  may  plead  to  a  scire  facias,  and  make  as  full  defence  as 
he  could  upon  a  summons ;  it  has  therefore  been  considered  an 
action  in  law;  and  in  a  late  case,  Allen  t».  Reesor,  16  S.  &  R.  14, 
the  court  decided  that  a  scire  facias  on  recognisance  in  the  Orphans' 
Court  was  sustainable  as  being  substantially  an  action  of  debt. 
There  is  nothing  in  the  opinion  of  Judge  Yeates,  in  6  Binn.  135, 
that  militates  against  the  doctrine  contended  for  by  the  ulaintiffs. 


70  SUPREME  COURT  [Chambersburg 

[Clippinger  v.  Miller.] 

We  admit  that  a  judgment  cannot  shut  at  one  period  and  open  at 
another  so  as  to  embrace  of  itself  merely  property  not  originally 
bound;  but  we  contend  that  through  the  medium  of  an  amicable  suit 
of  scire  facias  founded  on  the  original  judgment,  and  a  new  judgment 
entered  on  that  in  1817,  the  plaintiff  obtained  a  lien,  which  did 
embrace  all  the  land  which  the  defendant  had  at  that  time.  It  can- 
not be  pretended  that  a  fi.  fa.  partakes  at  all  of  the  nature  of  an 
action;  nor  can  it  be  denied  that  the  object  of  a  testatum Ji.  fa.  is 
to  obtain  the  points  of  the  judgment  on  which  it  issued ;  yet  by 
these  writs  a  plaintiff  may  acquire  a  lien  on  land  not  bound  by  the 
original  judgments:  Cowden  v.  Brady,  8  S.  &  R.  505.  There  would 
be  no  principle  of  law  violated,  or  rule  of  equity  abridged,  by  attach- 
ing to  a  judgment  on  a  scire  facias  all  the  consequences  of  a  judg- 
ment upon  an  original  action.  On  the  contrary,  such  a  decision 
would  be  in  exact  accordance  with  the  spirit  and  letter  of  our  Acts 
of  Assembly,  which  direct  that  "judgments  shall  bind  the  real  estate 
of  defendants  from  their  dates,"  and  that  "all  the  goods  and  chat- 
tels, lands  and  tenements  of  debtors,  shall  be  subject  to  execution." 
The  doctrine  contended  for  by  the  plaintiff  in  error  is  not  only  con- 
trary to  every  sound  rule  of  construction,  but  it  is  subversive  of 
the  universal  practice  of  our  courts  ;  such  a  doctrine  would  involve 
sheriffs  in  inextricable  difficulties  in  the  distribution  of  the  proceeds 
of  real  estates  of  defendants  when  different  properties  of  the  same 
defendant  are  sold.  . 

On  the  second  point  it  need  only  be  remarked  that  in  the  case  of 
Chahoon  v.  Hollenbach,  16  S.  &  R.  432,  the  third  section  of  the 
Act  of  the  4th  April  1798,  limiting  the  lien  of  judgments,  was 
fairly  before  the  court,  and  by  the  decision  made  in  that  case,  a 
construction  has  been  given  to  that  section  which  is  at  once  safe 
and  convenient,  and  in  perfect  accordance  with  the  invariable  prac- 
tice and  understanding  of  the  profession.  If  the  letter  of  the  act 
were  to  be  complied  with,  according  to  the  common  understanding 
of  the  word  "occupants,"  every  sub-tenant  from  year  to  year,  or 
at  suffrance,  of  every  room  in  the  house  or  cabin  on  the  land,  must 
be  summoned.  The  defendant,  and  those  holding  the  fee  under 
him,  are  the  only  persons  whose  rights  could  be  affected  by  the 
want  of  notice ;  and  they  alone,  says  Chief  Justice  Gibson,  are 
entitled  to  notice. 

On  the  third  point  it  need  only  be  remarked  that  the  principles  of 
substitution  contended  for  by  the  plaintiff  in  error,  cannot  apply  to 
this  case.  If  there  were  no  other  creditors  of  Dr.  Creigh  but  the 
parties  to  this  cause,  the  rule  would  apply ;  but  there  are  other 
creditors  who  are  not  parties  to  this  issue,  and  who  would  be 
affected  by  such  substitution.  If  the  creditors  in  both  counties  have 
the  same  equity,  the  law  must  decide  between  them. 

Ramsay,  in  reply. — The  scire  facias  of  1817  specifies  no  sum,  and 


Oct.  1829.]  OF  PENNSYLVANIA.  71 

[Clippinger  v.  Miller.] 

the  scire  facias  of  1822,  is  to  revive  the  judgment  of  1817,  and 
mentions  no  sum  to  be  due  by  the  defendant  to  the  plaintiffs.  If, 
therefore,  it  should  be  contended  that  the  irregular  judgment  of 
1817,  was  of  itself  a  good  judgment,  without  relation  to  the  judg- 
ment of  1804,  but  is  in  the  nature  of  an  original  action,  it  is  void 
for  uncertainty,  and  the  court  cannot  tell  how  much  was  recovered 
in  that  suit  by  the  record  itself.  And  if  it  is  a  scire  facias  to  re- 
vive the  judgment  of  1804,  and  continue  its  lien,  it  cannot  embrace 
subsequently  acquired  property :  Philadelphia  Bank  v.  Craft,  16 
S.  &  11.  348. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — Two  questions  arise  in  the  case  stated.  First, 
whether  the  revival  of  a  judgment,  by  amicable  scire  facias  post 
annum  et  diem,  creates  a  lien  upon  the  property  of  the  defendant, 
acquired  after  the  original  judgment. 

And  secondly,  whether  a  scire  facias  continues  the  lien  upon  the 
land,  the  terre-tenants  not  having  been  made  parties,  no  writ  hav- 
ing been  served  upon  them. 

The  first  question  has  been  virtually  decided  in  Berryhill  v.  Wells, 
5  Binn.  56,  and  in  Fries  v.  Watson,  5  S.  &  R.  220.  In  some  re- 
spects we  have  departed  from  the  English  law,  and  the  difference 
has  arisen  from  the  construction  of  an  Act  of  Assembly,  making 
interest  an  incident  to  a  judgment.  The  cases  referred  to,  go  on 
the  ground  that  a  judgment  on  the  scire  facias  is  not  a  mere  revival 
of  the  original  judgment,  but  partakes  of  the  nature  of  a  new  judg- 
ment, and  the  court  assimilates  it  to  the  case  of  a  judgment  rendered 
in  an  action  of  debt  on  the  original  judgment.  We  cannot  perceive 
any  good  reason  why  a  difference  in  the  remedies  should  make  any 
difference  in  the  right.  If  the  plaintiff  had  brought  an  action  of 
debt  instead  of  a  scire  facias,  the  land  would  have  been  bound. 
And  we  believe  a  judgment  on  the  scire  facias  places  the  plaintiff 
on  precisely  the  same  footing.  In  strictness,  it  is  true,  a  scire  fa- 
cias is  not  an  action,  but  the  object  of  the  two  remedies^s  the  same; 
the  obtaining  the  fruits  of  the  original  judgment.  It  is  in  the  nature 
of  an  original  action ;  and  to  say  that  as  to  the  recovery  of  inter- 
est, it  should  be  considered  as  a  judgment  in  an  original  action,  but 
not  so  in  other  respects,  would  be  introducing  a  distinction,  attended, 
as  far  as  we  can  perceive,  with  no  beneficial  results. 

By  tenants  is  meant  the  owners  of  the  feo  simple,  and  by  occu- 
piers, those  who  come  in  under  them :  2  Saund.  7,  n.  0.  And  in 
this  sense,  the  terms  arc  used  in  the  third  section  of  the  Act  of  17!>8. 
When  the  tenant  in  fee  is  known,  and  within  reach  of  the  process 
of  the  court,  the  legislature  intended  he  should  have  notice  :  on  him 
the  scire  facias  should  be  served,  for  he,  and  he  only,  is  entitled  to 
notice,  who  will  be  prejudiced  by  the  judgment.  The  Act  of  Assem- 
bly is  in  the  alternative.  The  scire  facias  must  be  served  on  the 


72  SUPREME  COURT  [Ckamberdwrg 

[Clippinger  v.  Miller.] 

tcrre- tenants  or  occupiers  of  the  land ;  by  which  expressions,  I  do 
not  understand  the  legislature  to  mean  that  terre-tenants  and  occu- 
piers are  one  and  the  same,  but  as  intending  to  provide  for  the  ser- 
vice of  notice  on  the  persons  occupying  the  land,  where  the  owner 
of  the  fee  simple  is  unknown,  or  not  within  reach  of  the  process  of 
the  court.  The  tenants  do  not  make  any  complaint  of  want  of  no- 
tice; if  their  right  were  affected  they  would  be  entitled  to  a  hear- 
ing ;  but  the  judgment  would  cease  to  be  a  lien  only  so  far  as  their 
interest  was  concerned.  A  contrary  exposition  of  this  act  would 
be  attended  with  great  inconvenience ;  for  if  you  were  obliged  to 
serve  notice,  at  the  risk  of  losing  your  lien,  on  all  the  occupiers  of 
land  bound  by  a  judgment  (which  is  a  general  lien  on  all  the  real 
property  a  man  possesses),  it  would  be  extremely  troublesome  and 
very  expensive.  And  in  accordance  with  this  opinion,  has  been 
the  universal  understanding.  It  has  not  been  considered  necessary, 
where  there  has  been  no  transfer  of  the  property  by  the  defendant, 
to  bring  in  any  person  but  the  defendant  himself.  When  there  has 
been  an  alienation  or  sale  of  the  property,  it  is  right  that  the  party 
to  be  affected  should  have  an  opportunity  of  making  defence,  pro 
interesse  «uo,  for  preventing  the  risk  and  inconvenience  to  pur- 
chasers of  real  estate,  seems  to  have  been  the  principal  object  of  the 
Act  of  the  4th  April  1798. 

I  cannot  perceive  any  similarity  between  this  case  and  the  case 
of  the  Philadelphia  Bank  v.  Craft,  16  S.  &  R.  348.  There  it  was 
contended  that  it  was  a  final  judgment,  without  any  sum  being  as- 
certained, either  directly  or  by  reference.  We  did  not  mean  to  in- 
terfere with  judgments  which  referred  to  a  sum  ascertained  and 
fixed.  By  applying  the  maxim,  id  cerium  est,  quod  cerium  rcddi 
potcst,  there  is  no  difficulty  in  ascertaining  the  amount  found  in  the 
judgment  on  the  scire  facias. 

The  application  to  the  court  to  be  substituted,  &c.,  we  think 
premature,  as  the  persons  to  be  affected  by  it  are  no  parties  to  this 
proceeding. 

Judgment  affirmed. 

Referred  to,  2  W.  379;  4  W.  206  ;  3  W.  &  S.  471  ,  Bright.  Rep.  452;  1 
Barr  104  ;  7  Id.  66,  67  ;  10  Id.  383  ;  1  Smith  211,212;  13  Id.  232  ;  8  Phila. 
99 


Oct.  1829.]  OF  PENNSYLVANIA.  73 


Gardner  against  Lefevre. 

A  writ  of  error  will  not  lie  upon  an  order  of  the  Court  of  Common  Pleas 
overruling  a  motion  to  strike  off  an  appeal  and  setting  aside  an  execution, 
supposed  to  have  been  improvidently  issued. 

ERROR  to  the  Court  of  Common  Pleas  of  Adams  county. 

A  motion  was  made  to  quash  the  writ.  It  appeared  from  the 
record  that  an  action  of  replevin  had  been  brought  by  Jacob  Lefevre, 
as  administrator  of  Rachael  Espy,  for  goods  of  the  intestate,  alleged 
to  be  in  the  hands  of  the  defendant.  A  rule  of  reference  was  en- 
tered by  the  defendant,  under  the  Compulsory  Arbitration  Law, 
and  after  hearing,  a  report  was  made  in  favor  of  the  defendant.  He 
filed  his  bill  of  costs,  and  gave  notice  to  the  plaintiff  that  he  would 
not  consent  to  an  appeal  without  the  payment  of  his  costs.  An 
appeal  was  entered  by  the  plaintiff's  attorney,  without  such  pay- 
ment ;  and  after  the  twenty  days  had  elapsed,  an  execution  was 
issued  against  the  plaintiff'  de  bouts  propriis,  for  the  costs,  return- 
able to  April  term  1829.  A  rule  was  entered  at  the  instance  of 
plaintiff  to  show  cause  why  the  execution  should  not  be  set  aside ; 
and  a  motion  was  also  made  on  behalf  of  the  defendant  to  strike 
off  the  appeal,  on  the  ground  that  the  cause  of  action  was  in  the 
plaintiff  not  as  administrator,  but  in  his  own  right.  Upon  hearing 
both  motions,  the  court  set  aside  the  execution,  and  refused  to 
strike  off  the  appeal.  To  this  decree  of  the  court  the  present  writ 
of  error  was  taken. 

Miller,  for  the  defendant  in  error,  contended  that  this  writ  could 
not  be  sustained,  because  there  was  no  final  judgment  of  the  court 
below,  and  that  the  cause  was  still  pending  and  undetermined  in 
the  Common  Pleas. 

Stevens,  for  the  plaintiff  in  error,  maintained  that  the  entry  of 
the  appeal  was  a  nullity ;  that  the  action  was  personal,  and  could 
only  be  sustained  in  the  name  of  the  plaintiff  in  his  own  right,  and 
the  addition  of  administrator  was  mere  surplusage ;  that  an  oath, 
recognisance  and  payment  of  costs,  were  necessary  pre-requisites  tc 
the  entry  of  an  appeal,  and  they  having  been  dispensed  with  after 
notice,  the  mere  act  of  entering  an  appeal  by  plaintiff's  attorney  is 
a  nullity,  and  may  be  disregarded. 

BY  THE  COURT. — The  cause  is  still  pending  in  the  Court  of  Com- 
mon Pleas.  There  is  no  final  judgment :  the  writ  of  error  must, 
therefore,  be  quashed. 


74  SUPREME  COURT  \_Chamlerslurg 

Elliott  against  Sanderson. 


IN    ERROR. 


A  writ  of  error  will  not  lie  to  remove  a  judgment  in  the  Circuit  Court, 
to  tho  Supreme  Court,  in  any  case  in  which  the  party  might  have  had  a 
remedy  by  appeal. 

THIS  record  was  brought  up  on  a  writ  of  error  to  the  Circuit 
Court  of  Cumberland  county,  where  it  was  a  suit  brought  by  the 
defendant  in  error,  Sanderson,  against  the  plaintiff  in  error,  Elliott, 
and  in  which  a  verdict  was  rendered  for  the  plaintiff  below ;  the 
defendant  filed  reasons  for  a  new  trial,  and  made  a  motion  in  arrest 
of  judgment,  which  were  overruled  by  the  judge  who  tried  the 
cause,  and  judgment  was  entered ;  whereupon  the  defendant  ap- 
pealed, in  pursuance  of  the  Act  of  Assembly ;  but  the  appeal  not 
having  been  entered  upon  the  records  of  the  Supreme  Court,  until 
after  the  return-day  for  the  district,  it  was  quashed.  The  defendant 
then  sued  out  this  writ  of  error,  which 

Carothers,  for  defendant  in  error,  moved  to  quash,  on  the  ground 
that  a  writ  of  error  will  not  lie  to  the  Circuit  Court  in  any  case 
where  the  party  might  have  had  a  remedy  by  appeal. 

Penrose,  for  plaintiff  in  error. — The  error  which  it  is  alleged  is 
contained  in  this  record,  does  not  consist  in  anything  which  occurred 
upon  the  trial  in  the  Circuit  Court,  but  other  errors  manifest  upon 
the  face  of  the  record. 

Carothers,  in  reply. — The  error  now  alleged  would  have  been  a 
good  reason  in  arrest  of  judgment,  which  motion  was  made  and 
overruled,  and  the  defendant  appealed. 

Writ  of  error  quashed. 


Chambers  against  Mifflin. 

IN   ERROR. 

A  precisely-descriptive  warrant  must  be  followed  up  with  reasonable  atten- 
tion, in  order  to  give  title  from  its  date.  So  of  a  vague  warrant  from  the 
time  of  Hurvey. 

If  an  owner  of  a  vague  or  removed  warrant  has  suffered  it  to  remain  un- 
returnf-d  for  more  than  twenty-one  years,  and  during  that  time  has  exercised 
no  act  of  ownership  u|>on  the  land,  the  state  or  any  person  has  a  right  to 
consider  it  as  derelict,  and  whoever  purchases  and  pays  for  the  hand,  under 
such  circumstances,  has  a  good  title. 

Qntrre.  Whether  the  law  is  not  the  same  in  some  cases,  as  to  precisely- 
descriptive  warrant*.1 

THIS  was  a  writ  of  error  to  the  Common  Pleas  of  Franklin  county, 
to  remove  the  record  and  judgment  of  that  court,  in  an  action  of 

1  See  Steinmetz  r.  Logan,  5  W.  518;  Emery  v.  Spencer,  11  II.  271; 
McGowen  c.  Ahl,  3  Smith  P* 


Oct..  1829.]  OF  PENNSYLVANIA.  75 

[Chambers  v.  Mifflin.] 

ejectment  Drought  by  Jonathan  Mifflin,  the  defendant  in  error, 
against  Thomas  Chambers,  the  plaintiff  in  error.  In  the  court  below 
the  verdict  and  judgment  were  for  the  plaintiff,  Mifflin. 

The  claims  of  the  respective  parties  were  as  follows  :  The  title  of 
the  defendant  in  error  and  plaintiff  below,  Jonathan  Mifflin,  origi- 
nated upon  a  warrant  granted  to  Robert  Long,  dated  15th  April 
1763,  for  two  hundred  acres  in  Black's  Gap,  in  the  South  mountain, 
including  some  springs,  supposed  to  be  the  headwaters  of  the  Corio- 
cocheague  creek,  in  Cumberland  county.  It  was  not  conceded  by 
the  defendant  below  that  a  survey  had  ever  been  made  on  this 
warrant,  but  it  appeared  in  evidence,  that  in  1776  and  afterwards, 
applications  were  entered  calling  for  lands  adjoining  Robert  Long, 
and  in  1792,  a  warrant,  in  which  it  was  alleged  Captain  Benjamin 
Chambers  had  an  interest,  was  taken  out,  calling  for  Robert  Long. 
No  survey  was  returned  on  this  Robert  Long  warrant,  until  April 
1797,  and  so  far  as  could  be  ascertained,  no  draft  of  any  survey 
had  been  in  the  office  of  the  deputy-surveyor  of  the  county.  Robert 
Long  conveyed  to  Jonathan  Mifflin,  by  deed  dated  20th  July  1796, 
and  he  obtained  a  patent  from  the  Commonwealth,  14th  February 
1812. 

The  plaintiff  in  error.  Thomas  Chambers,  claimed  under  a  war- 
rant to  George  Chambers,  dated  29th  December  1792,  for  two  hun- 
dred acres,  at  the  Shippensburg  fork  of  Conococheague  creek,  on 
both  sides  of  the  great  road  from  Chambersburg  to  York.  On  the 
5th  of  April  1793,  a  survey  was  made  on  this  warrant,  and  returned 
soon  after.  Some  proof  was  given  that  at  the  time  this  survey  was 
made,  the  father  of  the  plaintiff  in  error  knew  of  the  survey  of 
Robert  Long.  There  was  a  regular  chain  of  title  from  the  war- 
rantee to  the  plaintiff  in  error,  Thomas  Chambers. 

On  the  19th  July  1796,  Long  and  Mifflin  exhibited  to  the  board 
of  property,  a  draft  of  a  survey  of  this  land,  and  their  warrant,  and 
the  board  granted  them  an  order  of  re-survey,  and  directed  the 
'deputy-surveyor  to  make  a  return,  noting  the  interference,  if  any, 
with  any  other  claim.  After  this,  to  wit,  12th  April  1797,  a  draft 

of  a  survey  on  Robert  Long's  warrant,  dated  4th  April ,  and 

signed  for  John  Armstrong,  by  William  Lyon,  was  taken  to  the  sur- 
veyor-general's office,  and  was  accepted  by  the  surveyor-general,  and 
filed.  Soon  after  this,  a  copy  of  the  order  of  the  board  of  property, 
before  mentioned,  was  sent  to  the  deputy-surveyor  of  the  county, 
included  in  which  was  a  copy  of  this  draft  by  William  Lyon. 

John  Armstrong  had  not  been  deputy-surveyor  since  1776.  No- 
thing was  done  in  pursuance  of  this  order  of  the  board  of  property. 

No  actual  improvement  was  made  upon  the  land  until  about  the 
year  1808.  This  suit  was  brought  in  1825. 

Several  errors  were  assigned  in  this  court  to  the  charge  of  the 
court  below  to  the  jury.  Those  that  are  material  to  the  decision 
made  by  this  court,  are  as  follows  : 

The    court   erred  in  saying   "that  if  Benjamin  Chambers  had 


7G  SUPREME  COURT  [Chamberslwrg 

[Chambers  v.  Mifflin.] 

notice  of  the  survey  on  Long's  warrant,  the  delay  of  the  deputy- 
surveyor  to  return  the  survey,  will  not  affect  the  plaintiff's  title, 
whether  that  delay  proceeded  from  neglect  of  the  officer,  or  the 
omission  to  pay  the  fees. 

In  not  directing  the  jury,  as  requested,  that  Long  was  guilty  of 
negligence  in  not  causing  the  survey  to  be  returned,  and  that  such 
omission  was  calculated  to  mislead  and  impose  on  purchasers  from 
the  Commonwealth. 

In  not  directing  the  jury,  as  requested,  that  if  Long  withheld  his 
survey  from  the  office,  for  the  purpose  of  keeping  it  open  for  change, 
it  would  have  no  validity  against  a  person  knowing  it,  until  after 
the  return  and  acceptance. 

In  not  instructing  the  jury  that  they  might  presume  that  Long 
had  abandoned  his  survey  as  made. 

Crawford,  for  the  plaintiff  in  error. — A  warrantee,  after  he  nas 
procured  his  warrant,  has  certain  duties  to  perform ;  he  must  pro- 
vide chain-carriers  and  provisions,  and  he  must  pay  the  fees  of  the 
deputy-surveyor,  to  entitle  him  to  have  his  survey  returned  ;  and  if 
any  of  these  duties  are  omitted,  by  reason  of  which  his  warrant  is 
not  duly  executed,  and  his  survey  returned,  such  omission  will 
affect  his  title ;  and  the  court  erred  in  laying  down  the  law  differ- 
ently to  the  jury  :  Fisher  v.  Larick  et  al.,  3  S.  &  R.  321 ;  Boyles 
v.  Kelly,  10  Id.  217 ;  Lessee  of  Lauman  v.  Thomas,  4  Binn.  59. 
And  in  all  these  cases,  the  paying  of  the  fees  of  the  deputy-sur- 
veyor is  treated  as  a  matter  of  necessity. 

The  direction  of  the  court,  that  an  abandonment  could  not  be 
presumed,  particularly  as  the  plaintiff  had  his  survey  returned,  and 
a  patent  issued  upon  it,  was  erroneous  :  Boyle  v.  Kelly,  10  S.  &  R. 
217  ;  Watson  v.  Gilday,  11  Id.  340.  But  it  was  calculated  to  mis- 
lead the  jury  ;  for  the  survey  of  the  plaintiff  was  not  returned  till 
1797,  three  or  four  years  after  the  defendant's  survey  was  made 
and  returned,  and  his  patent  did  not  issue  for  nineteen  years  after- 
wards. 

Dunlop,  for  defendant  in  error. — The  warrant  to  Robert  Long  is 
not  a  shifted  warrant,  but  a  vague  one,  calling  for  land  in  Black's 
Gap,  and  it  is  laid  upon  land  as  high  up  the  waters  called  for  in 
the  description  as  it  could  be,  without  going  out  of  the  county  of 
Cumberland.  The  difficulties  of  the  cause  are  removed  by  the  con- 
clusion that  our  warrant  is  a  vague  one :  Moore  v.  Shaver,  6  S.  & 
R.  130 ;  Lilly  v.  Paschal,  2  Id.  294. 

Even  if  it  was  a  shifted  warrant,  it  is  sufficiently  proved  that 
Captain  Chambers  had  notice  of  the  survey.  The  jury  believed  and 
found  accordingly,  either  that  the  warrant  was  vague,  or  that  Cap- 
tain Chambers  had  notice ;  that  he  did  know  of  Long's  survey  is 
certain,  from  the  fact,  that  another  survey  of  his  called  for  Robert 
Long's  survey  on  the  south  ;  and  although  this  warrant  and  Bur- 


Oct.  1829.]  OF  PENNSYLVANIA.  77 

[Chambers  v.  Mifflin.] 

vey  is  in  the  name  of  Joseph  Chambers,  yet  all  the  circumstances  in 
the  cause  show  that  Captain  Chambers  was  part  owner  of  it.  All 
the  adjoining  surveys  made  at  the  time  called  for  Robert  Long.  The 
court  charged  the  jury  in  favor  of  the  defendant  on  this  point,  for 
they  said  that  Captain  Chambers  must  have  had  notice  prior  to  the 
commencement  of  his  title,  to  be  affected  by  Long's  title. 

McCulloch,  on  the  same  side. — The  request  to  the  court  to  charge 
the  jury,  that  the  conduct  of  Long  was  calculated  to  mislead  and 
impose  on  purchasers,  was  a  question  of  fact  and  not  of  law,  and 
therefore  this  court  will  not  reverse  the  judgment,  even  if  the  court 
below  were  wrong  in  their  opinion. 

The  return  of  a  survey  is  but  notice  to  everybody  of  the  appro- 
priation of  the  land  included  within  that  survey  ;  if,  therefore,  Cap- 
tain Chambers  knew  of  Long's  survey,  this  knowledge  as  to  him, 
was  tantamount  to  a  return  and  acceptance. 

There  is  no  such  thing  known  in  the  history  of  the  land  titles  of 
Pennsylvania,  as  gathered  from  our  books,  as  the  doctrine  that  a 
jury  can  presume  the  abandonment  of  a  warrant  upon  which  money 
has  been  paid.  The  doctrine  of  abandonment  only  applies  to  im- 
provement rights  or  locations,  where  no  money  has  been  paid  ;  and 
in  those  cases  it  may  be  presumed,  because  the  giving  up  of  posses- 
sion is  giving  up  everything  which  the  improver  had ;  but  where 
money  is  paid,  it  cannot  be  presumed  that  it  is  abandoned.  It  has 
been  decided  in  the  case  of  Mitchell  v.  Mitchell,  4  Binn.  180,  that 
when  money  has  been  paid  on  a  warrant,  the  Commonwealth  has 
no  right  to  vacate  that  warrant. 

Chambers,  in  reply. — The  warrant  of  Robert  Long  was  not  in- 
tended for  the  land  in  dispute,  but  for  land  including  the  springs 
and  head-waters  of  the  Conococheague  creek.  A  right  founded 
upon  a  shifted  warrant  and  survey  is  an  imperfect  right,  until  it  is 
returned  and  accepted,  for  until  then  the  warrantee  might  change 
his  survey  and  lay  it  upon  other  lands ;  or  the  proprietaries  might 
refuse  to  accept  it,  having  previously  given  no  assent  to  the  appro- 
priation of  the  particular  lands  surveyed. 

This  imperfect  right,  therefore,  which  either  party  may  change, 
until  the  survey  is  accepted,  is  such  a  right  as  may  be  abandoned. 
And  the  only  difference  between  the  presumption  of  an  abandon- 
ment of  an  improvement  or  location,  when  little  or  no  money  is 
paid,  and  of  a  warrant  where  money  is  paid,  is  in  the  amount  of 
evidence  required  to  support  the  presumption  in  one  case  and  the 
other. 

If  Long  had  once  abandoned  the  land,  he  never  could  renew  his 
claim  afterwards  to  the  prejudice  of  another,  who  had  taken  out  an 
office  right. 

The  extent  of  our  request  to  the  court  was  not  to  instruct  the 
jury  that  there  was  an  abandonment,  but  "that  the  jury  may  pre 
sume  from  the  facts  that  there  was  an  abandonment. ' 


78  SUPREME  COURT  [Chambersburg 

[Chambers  r.  MifBin.] 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — [Ilerehis  honor  recapitulated  the  facts  in  the  cause.] 
In  the  argument  of  his  case  here,  and  I  may  suppose  in  the  court 
below,  all  the  cases  on  precise,  vague  and  removed  warrants  were 
cited.  See  McKinney  v.  Ilouser,  2  Sm.  L.  190  ;  Duncan  v.  Curry, 
3  Binn.  14,  and  Lauman  v.  Thomas,  4  Id.  58.  See  also  3  S.  &  R. 
321-2;  10  Id.  17;  Maus  v.  Montgomery,  15  Id.  224. 

And  if  this  suit  had  been  brought  forty  years  ago,  or  if  the  title 
of  defendant  below  had  commenced  within  a  few  years  after  the 
plaintiff's,  there  would  have  been  no  error  perhaps  in  the  charge. 
By  recurring  to  those  cases  in  which  this  matter  has  been  discussed, 
it  will  appear,  that  in  Lauman  v.  Thomas,  the  plaintiff's  warrants 
were  dated  27th  of  April  1774,  surveyed  in  May  1774,  when  re- 
turned was  uncertain  ;  but  certainly  before  the  12th  January  1792, 
when  a  patent  issued.  The  defendant's  title  commenced  in  De- 
cember 1774,  and  his  patent  in  1776.  In  3  S.  &  R.  321,  one  title 
was  the  3d  of  April  1769,  surveyed  in  1772,  the  other  a  warrant 
in  1772.  In  Duncan  r.  Curry,  both  titles  were  dated  3d  April 
1769,  one  surveyed  in  1771,  the  other  in  1774,  and  not  returned 
until  after  1795,  and  was  clearly  postponed. 

In  short,  all  those  cases  presented  something  very  different  from 
the  present. 

There  was  at  one  time  but  little  difference  in  the  titles,  and  in 
most  of  them  some  possession  or  ownership  was  alleged  to  supply 
the  want  of  return. 

While  the  country  was  unsettled,  a  wilderness,  a  few  years  did 
not  give  much  strength  to  a  title.  The  war  and  desolation  along 
the  frontiers,  on  account  of  Indian  depredations,  delayed  the  settle- 
ment and  occasioned  allowances  for  not  pursuing  titles;  rules  laid 
down  in  1772 — I  were  again  adopted  as  applicable  after  the  war,  in 
1785-7,  and  following  years.  Though  it  was  most  palpable  that 
the  reason  for  indulging  a  person  in  not  getting  a  survey  returned 
in  1774  or  '5  was  no  reason  at  all  for  indulging  him  after  1790. 
The  deputy-surveyors,  before  the  war,  had  died,  had  removed,  or 
were  superannuated.  Their  papers  were  scattered,  some  of  them 
displeased  at  not  being  in  office,  and  their  refusal  to  return  surveys 
was  some  excuse.  Since  the  war  their  bonds  could  have  been  sued 
or  the  board  of  property  would  have  compelled  them  to  have  re- 
turned surveys. 

The  doctrine  of  our  courts  has  not  been  well  understood,  for  when 
it  is  said,  a  precisely  descriptive  warrant  gives  title  from  its  date,  a 
vague  one  from  the  time  of  survey,  &c.,  it  is  sometimes  added 
and  always  understood,  provided  it  is  otherwise  followed  up  with 
reasonable  attention.  It  is  not,  and  never  was  the  law  that  on 
taking  out  a  warrant,  and  procuring  a  survey,  and  then  neglect- 
ing or  refusing  to  pay  the  surveyor's  fees,  which  was  always  neces- 
sary to  procure  a  return,  that  a  man  could  hold  the  land,  without 
attending  to  it  in  any  way,  for  an  indefinite  length  of  time. 


Oct.  1829.]  OF  PENNSYLVANIA.  79 

[Chambers  v.  Mifflin.J 

Although  a  warrant  has  been  surveyed,  yet  if  not  returned,  the 
owner  may  change  its  lines,  or  change  its  place  altogether,  and  lay 
it  on  any  other  vacant  land  anywhere  near ;  until  it  is  returned,  the 
state  has  no  power  to  collect  arrears  of  purchase-money.  It  never 
can  be  that  a  man  can  wait  thirty  or  forty  years,  and  all  that  time 
be  able  to  say,  this  is  my  land,  if  I  please,  and  not  mine  unless  I 
please.  I  will  take  this  land  and  pay  the  state  for  it  if  the  country 
improves,  and  it  rises  in  value,  or  if  somebody  will  render  it  valua- 
ble by  improvement ;  but  I  will  not  take  it  and  pay  the  purchase- 
money,  unless  something  occurs  to  render  it  more  valuable.  Nor 
is  it  the  law,  that  a  man  can  commence  procuring  a  title  from  the 
state,  and,  from  pure  negligence,  leave  it  in  such  a  situation,  for 
more  than  twenty  years,  as  that  he  is  not  bound  to  take  it,  and  no 
one  else  can  safely  take  it.  We  have  full  arid  ample  provision  on 
this  subject  by  our  legislature.  The  Act  of  the  9th  of  April  1781, 
for  establishing  a  land  office,  provides,  in  section  nine,  that  all  sur- 
veys heretofore  made  shall  be  returned  into  the  surveyor-general's 
office  within  nine  months,  and  prescribes  a  penalty  on  any  deputy- 
surveyor,  to  whom  his  fees  shall  be  paid,  who  neglects  to  return. 
This  continued  till  5th  April  1782,  when  it  was  enacted,  "  It  shall 
be  lawful  for  the  surveyor-general  of  this  state  to  receive  returns 
of  such  surveys,  as  shall  appear  to  him  to  have  been  faithfully  and 
regularly  made,  from  the  said  late  deputy-surveyors,  their  heirs  or 
legal  representatives,  for  such  further  period  as  to  him  shall  seem 
just  and  reasonable."  And  a  saving  for  those  who  had  neglected 
to  pay  fees  and  procure  returns  under  the  last  cited  act.  The  Act 
of  8th  April  1785,  section  eight,  prescribes  that  every  deputy-sur- 
veyor shall,  as  soon  as  conveniently  may  be  after  survey  made,  on 
receiving  his  fees,  return  said  survey  into  the  surveyor-general's 
office ;  and  that  every  survey  made  before  the  31st  December,  in 
each  year,  and  not  returned  before  the  last  of  March  in  next  year, 
shall  be  void  as  to  future  surveys,  which  shall  be  returned  sooner, 
and  a  penalty  on  the  deputy-surveyor,  if  the  neglect  is  by  his  fault. 
Although  this  act  has  been  supposed  to  be  only  applicable  to  lands 
in  the  purchase  of  1784,  and  cast  of  the  Allegheny  river,  yet  it  is 
important,  as  showing  the  sense  of  the  legislature  on  the  necessity 
of  a  return  of  survey  in  due  time,  and  the  evils  incident  on  neglect 
in  this  particular.  Then  came  the  Act  of  4th  September  1703, 
which  provides  that  "All  returns  of  surveys  which  have  been  actu- 
ally executed  since  the  4th  July  1770,  by  deputy-surveyors,  while 
they  acted  under  legal  appointments,  shall  be  received  in  the  Land 
Office,  although  the  said  deputy-surveyors  may  happen  not  to  be  in 
office  at  the  time  of  the  return  or  returns  being  made :  provided 
that  no  returns  be  admitted  that  were  made  by  deputy-surveyors, 
who  have  been  more  than  nine  years  out  of  office."  This  short  law 
is  in  some  respects  obscure  when  closely  examined,  but  it  further 
shows  strongly  the  sense  of  the  legislature  on  the  subject  of  keeping 


80  SUPREME  COURT  \_Chambersburg 

[Chambers  r.  Mifflin.] 

titles  in  this  uncertain  and  unfinished  state.  It  lays  down  a  rule 
wnich  is  not  easily  to  be  gotten  over  by  the  courts.  Independent 
of  this  law,  who  will  say  that  the  Act  of  1782,  which  allows  returns 
to  be  received  till  such  period  as  the  surveyor-general  shall  deem 
just  and  reasonable,  would  keep  the  office  open  for  ever. 

I  am  aware  that  there  are  cases  where  plaintiffs  have  recovered 
on  surveys  not  returned  until  since  1793.  They  will,  however,  be 
found  very  special  cases,  where  the  owner  has  proved  great  exer- 
tions on  his  part  to  procure  returns,  and  fraud  or  accident  in  pre- 
venting them.  I  am  also  aware  that  the  owners  of  many  tracts, 
who  have  taken  possession  and  occupied  them,  sold  them  to  others 
who  occupied  them,  or  transmitted  them  to  their  descendants,  have 
found  no  returns  in  the  office.  In  such  cases  the  land  officers  issue 
orders  and  have  returns  made  yet,  and  rightly,  for  no  injury  is  done 
to  any  one.  So  if  land  has  been  surveyed,  and  no  adverse  claimant, 
as  improver,  or  by  warrant,  has  any  claim  to  the  land,  returns  are 
received,  and  may  be  received,  from  the  present  deputy-surveyors ; 
but  where,  as  in  the  present  case,  a  vague  or  removed  warrant  has 
been  surveyed,  and  then  neglected  thirty  years,  or  even  a  less  time, 
and  no  excuse  shown,  it  was  not  within  a  "just  and  reasonable 
time,"  to  receive  the  return,  after  another  had  bought  and  paid  for 
it,  as  derelict.  In  another  point  of  view,  the  title  of  the  plaintiff 
below  was  irregular.  He  and  Long  applied  to  the  board  of  pro- 
perty, who,  instead  of  accepting  his  draft,  made  out  and  signed  by 
William  Lyon  for  John  Armstrong,  ordered  a  re-survey  by  the 
deputy-surveyor  of  the  county,  who  was  not  to  make  a  return  to  the 
surveyor-general,  but  to  that  board,  noting  the  interference,  if  any, 
with  other  claims.  After  this,  the  draft  made  out  by  William 
Lyon  for  John  Armstrong,  was  carried  to  the  office  of  the  surveyor- 
general,  and  by  him  accepted  and  filed,  as  a  return  of  survey.  It 
was  entirely  irregular  in  him  so  to  receive  and  file  this  return.  The 
matter  was  not  before  him  ;  it  was  sub-judice  ;  a  very  proper  order 
had  been  made,  and  it  is  certain  the  board  thought  it  not  of  course 
to  accept  a  return  of  this  survey  ;  that  whether  it  could  be  accepted 
depended  on  facts  to  be  ascertained,  and  the  surveyor-general  had 
no  right  to  take  the  matter  out  of  their  hands.  In  Harris's  Lessee 
v.  Monks,  2  S.  &  R.  557,  it  was  decided  that  an  act  of  the  surveyor- 
general,  respecting  a  return  of  survey  in  a  case  before  the  board  of 
property,  and  respecting  which  they  had  made  an  order,  was  totally 
void.  It  is  true,  that  was  a  case  in  which  a  caveat  had  been  entered, 
but  the  principle,  that  after  a  matter  was  before  the  board,  and  after 
they  had  taken  order  on  it,  it  was  illegal  in  the  surveyor-general  to 
do  any  act  inconsistent  with  or  superseding  their  order,  is  correct, 
and  applies  to  this  case. 

William  Lyon  had  no  right  to  return  a  survey,  even  while  John 
Armstrong  was  in  office.  I  have  no  hesitation  in  saying  that  he 
did  not  make  the  paper  in  question  for  the  purpose  of  being  carried 


Oct.  1829.]  OF  PENNSYLVANIA.  81 

[Chambers  v.  Mifflin.] 

to  the  land  office  as  a  return,  but  for  the  private  use  of  the  owner. 
There  have  been  cases  where  a  return  by  an  assistant  or  deputy- 
surveyor,  has  been  received  and  filed  in  the  surveyor-general's 
office,  as  a  return.  I  will  not  say  such  return  so  filed  is  void,  but 
it  was  always  an  irregularity,  and  is  particularly  objectionable  here, 
independent  of  other  reasons. 

The  Act  of  1793,  last  cited,  does,  it  is  true,  mention  surveys 
made  since  1776,  and  this  was  made  long  before.  I  would  not  infer 
from  this,  that  surveys  made  before,  might  still  be  accepted.  I 
rather  suppose  such  surveys  were  considered  as  out  of  all  reasonable 
time,  and  that  it  alluded  to  surveys  under  the  Act  of  1785. 

The  patent  does  not  alter  the  case.  In  this  state  the  inquiry  in 
an  ejectment  is  not  who  has  the  patent,  but  who  ought  to  have  it. 
On  the  whole,  we  are  of  opinion,  that  under  the  Acts  of  Assembly, 
under  the  principles  on  which  all  Acts  of  Limitations  are  made,  the 
return  of  survey  ought  not  to  have  been  accepted,  so  far  as  it  inter- 
fered with  the  survey  of  the  defendant.  That  although  a  survey 
before  the  war  may  yet  be  accepted,  where  possession  has  accom- 
panied it,  or  perhaps  where  there  is  no  adverse  claim  to  the  land ; 
yet  the  peace  and  quiet  of  the  community  require,  that  where  any 
owner  of  a  vague,  removed,  or  perhaps  in  some  cases,  a  precise 
warrant,  has  suffered  it  to  remain  unreturned  for  more  than  twenty- 
one  years ;  has  kept  it  in  his  power  to  return  it  as  laid,  or  change 
it,  to  pay  residue  of  purchase-money,  or  not  to  pay  it ;  has  exer- 
cised no  act  of  ownership ;  has  not  claimed  it,  or  returned  it  for 
taxation  ;  the  state  and  the  citizens  had  a  right  to  consider  it  as 
derelict,  and  whoever,  under  such  circumstances,  purchased  and 
paid  for  it,  has  a  good  title.  There  must  be  an  end  to  these  half 
titles  some  time.  It  cannot  be  at  the  option  of  an  individual,  for 
half  a  century,  whether  he  will  take  a  tract  of  land,  or  not  take  it; 
at  all  events,  his  option  is  at  an  end,  when  another  person  acquires 
a  right  to  it. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Referred  to,  5  W.  222-,  8  W.  119  ;  1  Jones  113  :  11  Smith  454. 
Commented  on,  12  II.  279. 

Commented  on  and  distinguished,  4  W.  &  S.  76,  77. 
Distinguished.  4  W.  443  ;  8  W.  98. 

Followed,  infra,  459;  2  P.  &  W.  395  ;  5  W.  525;  1  W.  &  S.  173  ;  11 
H.  277  ;  3  Smith  89. 


1  p.  &  w._6 


82  SUPREME  COURT  [Chamberdwg 


Russell  against  The  Commonwealth. 


IN    F.KKOR. 


A  writ  of  error  will  not  lie  to  the  opinion  of  the  Court  of  Common  Pleas 
discharging  a  person,  on  a  writ  of  habeas  corpus,  from  servitude. 

THIS  was  a  writ  of  error  to  Bedford  county,  to  remove  the 
record  and  proceedings  upon  a  habeas  corpus  which  issued  to  James 
M.  Russell,  Esq.,  for  the  body  of  Charity  Brogden. 

Charity  Brogden,  the  negro  woman  who  claims  her  freedom,  was 
a  slave  for  life  in  Maryland,  and  was  there  sold  at  public  sale,  by 
the  sheriff,  on  an  execution  against  her  master.  Mr.  Russell,  the 
respondent,  who  was  the  surety  of  the  master  for  the  debt  for  which 
the  said  slave  was  sold,  became  a  bidder,  and  purchased  the  slave 
in  due  form,  according  to  the  laws  of  Maryland. 

A  deed  of  manumission  was  executed  by  Mr.  Russell  to  Charity, 
on  consideration  of  her  serving  him  for  a  certain  term  of  years.  An 
indenture  was  then  executed  and  acknowledged  before  the  proper 
officer  in  Maryland,  dated  16th  October  1821,  between  Mr.  Russell 
and  Charity,  by  which  she  voluntarily  binds  herself  to  serve  said 
Russell,  his  heirs,  &c.,  in  the  state  of  Pennsylvania,  for  the  term 
of  ten  years,  from  15th  October  1821.  Mr.  Russell  covenants  to 
find  her  sufficient  meat,  drink,  clothing,  washing  and  lodging,  &c., 
and  one  dollar  when  free,  &c.  Previous  to  the  dispute,  Mr.  Russell 
remitted  on  the  indenture  the  last  three  years  of  servitude.  At 
the  time  the  deed  and  indenture  were  executed,  Charity  was  forty 
years  of  age,  and  at  the  time  the  writ  of  habeas  corpus  issued  in 
this  case,  she  was  forty-five  years  of  age. 

Upon  the  single  fact  of  the  age  of  Charity  being  forty-five  years 
when  the  writ  issued,  the  Court  of  Common  Pleas  (Tod,  president), 
discharged  the  applicant,  at  the  same  time  saying  that  they  did  not 
know  what  the  opinion  of  the  court  would  have  been,  if  Charity 
had  been  but  thirty  years  of  age,  or  any  period  less  than  forty-five 
years. 

But  their  opinion  is  formed  upon  the  facts  as  they  are,  and  that 
to  hold  Charity  under  the  circumstances,  would  be  contrary  to  the 
spirit  of  the  laws  of  Pennsylvania,  for  the  gradual  abolition  of 
slavery. 

In  this  court,  two  points  are  made. 

1st.  Will  a  writ  of  error  lie  to  remove  the  judgment  of  the  Court 
of  Common  Picas,  rendered  upon  a  habeas  corpus  ? 

2d.  Was  the  court  right  in  their  opinion  by  which  they  dis- 
charged Charity  from  servitude  ? 

McCulloch  and  Russell,  for  the  plaintiff  in  error 
No  appearance  for  defendant  in  error. 


Oct.  1829.]  OF  PENNSYLVANIA.  83 

[Russell  v.  Commonwealth.] 

The  cause  was  submitted  without  argument ;  and  the  writ  was 
quashed,  on  the  ground  that  no  writ  of  error  will  lie  to  remove  a 
judgment  upon  a  habeas  corpus. 


Hege  et  al.  against  Hege  et  al. 

IN    ERROR. 

A.,  leaving  several  children,  devised  to  his  son  B.  a  tract  of  land,  he  paying 
$50  an  acre  therefor  ;  to  his  son  0.  a  tract  of  land,  he  paying  $60  per  acre 
therefor;  the  amount  of  money  so  payable  to  be  equally  distributed  among 
all  his  children.  B.  took  under  his  father's  will,  made  several  payments 
according  to  its  direction,  and  died,  leaving  children ;  his  administrators 
having  obtained  from  the  Orphans'  Court  an  order  to  sell  his  real  estate  for 
the  payment  of  debts,  sold  the  same  subject  to  the  payment  of  the  balance  of 
the  money  due  under  his  father's  will :  Held,  that  the  administrators  sold  and 
the  purchaser  took  nothing  but  the  land,  and  was  not  entitled  to  the  interest 
which  B.  had  in  the  land  of  his  brother  C.  under  his  father's  will. 

When  C.  came  of  age,  he  refused  to  take  the  land  devised  to  him,  and  an 
agreement  was  entered  into  between  the  guardian  of  B.'s  children  and  all 
the  other  children  of  A.,  that  the  land  devised  to  C.  should  be  sold,  and  the 
money  equally  divided  between  them  ;  the  land,  in  pursuance  thereof,  having 
been  sold  by  trustees  appointed  for  the  purpose,  and  the  money  in  their  hands, 
it  was  held  that  a  suit  would  not  lie  against  them  in  the  names  of  the 
children  of  B.  to  recover  their  share,  but  must  be  brought  in  the  name  of  B.'s 
administrators,  there  being  debts  of  B.'s  estate  yet  unpaid. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Franklin  county, 
in  an  action  for  money  had  and  received,  brought  by  the  plaintiffs 
in  error,  Polly  Hege,  Susan  Hege  and  Nancy  Hege,  by  theii 

fuardian,  Jacob  Zent,  against  Peter  Hege,  Jacob  Hege  and 
'hilip^Tritt,  the  defendants  in  error. 

The  record  exhibited  the  following  facts ;  Christian  liege,  the 
grandfather  of  the  plaintiff',  arid  father  of  two  of  the  defendants, 
was  in  his  lifetime  seised  of  two  tracts  of  land,  and  died,  having 
first  made  his  last  will  and  testament,  the  material  part  of  which  to 
this  cause  is  as  follows : 

"To  my  son  Henry,  I  give  and  bequeath  two  hundred  acres  of 
land  lying  and  situate  on  the  north  side  of  my  mansion-house  and 
property,  the  beginning  to  be  on  my  east  line,  and  run  a  westerly 
course,  so  as  to  be  equally  advantageous  to  both  tracts,  at  present 
undivided ;  this  division,  I  will  Jacob  Hege,  one  of  my  sons  and 
two  discreet  neighbors,  to  be  chosen  by  Jacob  Hege  and  Henry 
liege,  to  determine.  This  two  hundred  acres  I  value  to  Henry 
liege,  at  £.r)0  per  acre,  payable  in  instalments  of  £300  in  each 
year,  for  five  years;  after  five  years  I  will  that  he  pay  the  sum  of 
£400  yearly,  until  the  whole  be  discharged:  if  Henry  Hege  refuses 
to  comply  with  these  terms,  it  is  my  will  that  my  executors  sell  and 
convey  the  same  land  to  the  highest  bidder,  at  a  fair  and  public  sale  ; 


84  SUPREME  COURT  [Chamberaburg 

[Hege  r.  liege.] 

if  he  complies,  I  will  the  above  described  land  to  him,  his  heirs  and 
assigns,  for  ever.  I  will  and  bequeath  to  my  son,  Peter  liege,  two 
hundred  and  thirty-six  acres  and  fifty-eight  perches  of  land, 
and  allowance,  including  my  mansion-house,  barn,  buildings 
and  appurtenances  thereto  belonging.  This  land  lies  situate 
on  the  south  side  of  my  property,  which  I  value  to  him  at  $00 
per  acre,  payable  in  instalments  of  $500  each  year,  for  five 
years;  then  the  instalments  shall  be  six  hundred  each  year  until 
the  amount  is  paid.  My  will  is  that  Jacob  Hege  act  as  guardian 
for  Peter  Hege,  until  he  is  twenty-one,  and  grant  the  privilege 
of  selling  fifty  or  sixty  acres  of  the  above-described  land,  to  be 
sold  and  conveyed  by  my  executors.  Jacob  Hege  shall  choose 
out  the  part  to  be  sold,  where  it  will  least  injure  the  place.  The 
above-described  mansion  tract,  I  will  to  Peter  Hege,  his  heirs  and 
assigns,  forever,  the  amount  being  discharged."  "I  have  made  the 
foregoing  valuation  of  my  land,  in  order  to  leave  my  property  as 
near  equal  as  possible  among  my  children."  "Finally,  I  will  that 
each  of  my  children  shall  receive  an  equal  share  of  my  whole  estate, 
of  every  description,  except  my  smith  tools,  which  I  will  to  Henry 
and  Peter  Hege." 

The  testator  appointed  Jacob  Hege,  Samuel  Zent  and  Peter  Hege 
to  be  his  executors,  of  whom  Jacob  liege  alone  was  the  surviving 
and  acting  executor,  when  this  suit  was  brought. 

This  will  was  proved  20th  May  1815.  Henry  liege,  the  devisee, 
took  possession  of  the  land  devised  to  him,  and  made  four  of  the 
payments  directed  by  his  father's  will;  and  on  the  16th  July  1820, 
died  intestate,  leaving  three  children,  who  are  the  plaintiffs  in  this 
suit. 

Henry  liege's  administrator  petitioned  the  Orphans'  Court  for  an 
order  to  sell  the  land  of  his  intestate,  for  the  payment  of  debts, 
which  was  granted ;  and  the  administrator  sold  and  conveyed  the 
same  land  which  had  been  devised  to  Henry  Hege  by  his  father,  to 
Samuel  Diehl,  on  the  12th  June  1821. 

On  the  Oth  of  March  1824,  Henry  Hege's  administrators  settled 
their  account  in  the  Orphans'  Court,  and  there  was  found  a  balance 
in  their  favor  of  §123.75,  after  which,  and  before  the  bringing  of 
this  suit,  they  were  discharged  from  their  office  of  administrators 
by  the  court.  When  Peter  Hege  came  of  age,  he  did  not  elect  to 
take  the  devise  to  him  under  Christian  Hege,  his  father's  will ;  but 
on  the  21st  December  1822,  the  following  agreement  was  made  and 
executed  by  and  between  all  the  heirs  and  legatees  of  Christian 
Heg«  and  the  children  of  Henry  liege,  deceased,  who  are  the 
plaintiffs  in  this  suit  by  their  guardian. 

"  Whereas  Christian  liege,  of  the  county  of  Franklin  and  state 
of  Pennsylvania,  by  his  last  will  and  testament,  did  devise  and 
bequeath  unto  his  son  Peter  his  mansion  tract  of  land  at  a  certain 
valuation,  and  did  distribute  the  money  arising  from  the  sale 


Oct.  1829.]  OF  PENNSYLVANIA.  85 

[liege  ».  Hege.] 

amongst  his  children.  Now  be  it  known  that  it  is  mutually  agreed 
by  and  between  said  Peter  Hege  of  the  one  part,  and  his  brothers 
and  sisters,  legatees  aforesaid,  of  the  other  part,  that  his  said  lands 
so  devised  to  said  Peter  should  be  sold  for  the  best  price  that  can 
be  obtained  for  the  same,  and  the  money  arising  from  said  sale 
shall  be  equally,  divided  amongst  the  children  of  said  Christian 
Hege,  deceased,  or  their  representatives,  so  that  the  said  Peter,  out 
of  the  whole  real  and  personal  estate  of  the  said  Christian  Hege, 
shall  receive  an  equal  share  with  his  brothers  and  sisters  and  no 
more.  And  it  is  further  agreed  that  said  Peter  Hege,  Jacob  Hege 
and  Philip  Tritt,  for  themselves  and  the  other  legatees,  do  contract 
for  the  sale  of  the  said  tract  of  land  to  the  purchaser,  the  said  lega- 
tees getting  their  shares  of  the  purchase-money,  in  satisfaction  of 
what  they  would  annually  have  been  entitled  to  from  Peter,  under 
the  said  will,  and  will  execute  the  necessary  receipts  and  releases 
for  the  same  to  the  said,  purchaser.  And  whereas  said  Peter  has 
been  charged  by  his  guardian,  Jacob  Hege,  and  his  agent  in  col- 
lecting rents,  making  sale  of  part  of  the  land,  and  making  calcula- 
tion and  settlement,  $305,  it  is  considered  as  reasonable  that  said 
Peter  is  not  to  be  charged  with  the  whole  of  said  sum,  but  he  is  to 
be  exclusively  charged  with  one-third  thereof,  and  the  other  two- 
thirds  shall  be  taken  off  all  the  legatees,  equally,  in  making  the 
distribution." 

In  pursuance  of  this  agreement,  in  April  1824,  Peter  liege, 
Jacob  Hege  and  Philip  Tritt,  sold  the  land  mentioned,  and  received 
the  purchase-money,  which  it  was  agreed  should  be  considered  in. 
their  hands,  for  the  purpose  of  trying  the  several  questions  which 
arose  out  of  the  facts. 

In  this  court  two  questions  were  presented  for  argument  and 
decision. 

1.  Is  not  Samuel  Diehl,  who  purchased  the  land  of  Henry  Hege, 
deceased,  from  his  administrators,  entitled  to  all  the  interest  which 
Henry  liege  had  under  the  will  of  Christian  Hege,  deceased,  and 
consequently  to  the  money  payable  out  of  the  land  of  Peter  to 
Henry  ? 

2.  Can  this  action  be  maintained  in  the  names  of  the  heirs  of 
Henry  liege  ?     Should  it  not  have  been  brought  by  the  adminis- 
trators ? 

Dunlop,  for  the  plaintiffs  in  error. — First.  The  only  interest 
which  Henry  liege  had  under  the  will  of  his  father,  which  affected 
the  land  devised  to  Peter,  was  a  legacy  charged  upon  it :  there  was 
no  application  to  the  Orphans'  Court  by  the  administrators  of 
Henry  to  sell  this  interest ;  that  court  granted  an  order  for  the 
sale  of  two  hundred  acres  of  land  described  by  metes  and  bounds, 
which  could  not  embrace  a  legacy  falling  due  in  successive  years, 


86  SUPREME  COURT 

[liege  v.  Hege.] 

and  payable  out  of  another  tract  of  land ;  nor  would  that  court 
have  power  to  grant  such  an  order. 

Second,  the  yearly  payments  to  be  made  by  Peter  out  of  the  land 
devised  to  him,  were  in  the  nature  of  an  annuity,  and  go  to  the 
heir,  and  not  to  the  administrator :  1  Rop.  on  Leg.  153 ;  2  Vernon 
133;  Toll.  Law  of  Ex'rs  178.  And  although  an-annuity  is  gener- 
ally chargeable  upon  the  person  of  the  grantor,  yet  it  may  be 
chargeable  upon  a  real  or  personal  fund :  1  Com.  Dig.  622,  tit. 
Annuity  ;  1  Jac.  Law  Die.  tit.  Annuity ;  Doc.  &  Stu.  90  ;  10  Mod. 
Rep.  237  ;  2  Ves.  Sr.  17  ;  1  Brown  Ch.  377 ;  Rop.  on  Leg.  153. 

If  a  devisee  refuses  to  take  land  charged  with  legacies,  it  descends 
to  the  heir,  subject  to  the  payment  of  those  legacies ;  and  therefore 
Henry,  the  father  of  the  plaintiffs,  being  an  heir,  upon  the  refusal 
of  Peter  to  take,  the  fee  and  the  charge  being  both  vested  in  him, 
the  charge  would  be  merged  in  the  inheritance:  8  Com.  Dig.  311, 
tit.  Merger.  If  lands  are  devised  to  A.,  and  he  cannot  be  found,  they 
descend  to  the  heir.  So  if  land  be  devised  to  the  executors  to  sell, 
before  they  qualify  themselves  to  sell,  the  land  goes  to  the  heir : 
Allison  v.  Wilson,  13  S.  &  R.  330. 

The  application  of  these  legal  principles  to  the  facts  of  this  case 
lead  inevitably  to  the  conclusion  that  the  claim  which  the  children 
of  Henry  had  upon  the  land  of  Peter  was  a  real  interest  which 
descended  to  them,  and  for  which  they  alone  could  sue. 

In  another  point  of  view.  A  proper  construction  of  the  agree- 
ment of  the  21st  of  December  1822,  amounts  to  this,  that  the 
legatees  agree  not  to  take  their  legacies,  and  the  devisee  not  to  take 
the  devise ;  whereby  the  will  of  Christian  Hege  was  rendered  in- 
operative as  to  this  land,  it  therefore  descended  in  reality  to  Henry 
Hege's  children,  and  therefore  they  alone  could  sue  for  the  money 
arising  out  of  the  sale  of  that  inheritance,  which  was  made  as  to 
their  interest  by  their  agreement  and  authority. 

There  was  a  valuable  consideration  which  induced  Peter  Hege  to 
enter  into  this  agreement;  for  upon  his  refusal  to  take  the  real 
estate  devised  to  him,  subject  to  the  legacies,  he  would  take  noth- 
ing :  2  Rop.  on  Leg.  447,  450.  And  if  he  took  the  land,  he  would 
have  been  personally  liable  for  the  legacies,  which  amounted  to 
more  than  its  value  :  Gleim  v.  Fisher,  6  Johns.  Ch.  R.  33. 

If  then  Peter  liege,  under  the  influence  of  this  consideration, 
and  the  other  defendants,  thus  agreed  with  the  plaintiffs  and  the 
other  heirs  of  Christian  liege,  that  this  part  of  the  estate  should  be 
considered  as  land,  and  should  be  sold  as  their  inheritance,  they 
ought  not  now  to  be  permitted  to  sustain  a  defence  against  the  legal 
operation  of  their  agreement. 

Crawford  appears  for  Samuel  Diehl,  the  purchaser  of  Henry 
liege's  estate  from  the  administrators. — The  defendants  are  mere 
stakeholders,  having  no  interest  in  this  cause.  The  administrators 


Oct.  1829.]  OF  PENNSYLVANIA.  87 

[Hege  v.  Hege.J 

of  Henry  Hege  applied  to  the  Orphans'  Court  for  an  order  to  sell 
the  estate  devised  to  Henry  by  his  father's  will,  subject  to  the  pay- 
ment of  the  legacies ;  arid  the  conditions  of  sale  made  known  by 
the  administrators  stated  that  they  would  sell  all  the  interest  of 
Henry  Hege,  deceased,  under  his  father's  will,  "which  is  herewith 
exhibited."  The  interest  which  Henry  had  in  Peter's  land,  being 
part  of  the  estate  which  he  took  under  his  father's  will,  passed  by 
the  sale  made  by  Henry's  administrators  to  Samuel  Diehl ;  there 
was  therefore  nothing  left  in  Henry's  heirs  to  sue  for.  It  is  Samuel 
Diehl  who  defends  in  this  suit  against  the  operation  of  an  agreement, 
in  the  subject-matter  of  which  he  had  an  interest  at  the  time  of  its 
execution,  and  to  which  he  is  not  a  party,  and  cannot  therefore  be 
affected  by  it. 

But  the  plaintiffs  in  this  suit  cannot  recover  at  all ;  if  there  can 
be  a  recovery  by  any  one  but  Samuel  Diehl,  it  must  be  by  the 
administrators  of  Henry  liege.  By  the  will  of  Christian  Hege, 
deceased,  his  ten  children  were  to  share  his  real  and  personal  estate 
equally,  and  executors  of  that  will  were  appointed,  through  whose 
hands  the  estate  must  come  to  be  distributed,  and  therefore  in  the 
shape  of  personal  estate,  and  not  land.  The  balance  overpaid  by 
the  administrators  of  Henry  liege,  as  appeared  upon  the  settlement 
of  their  administration  account,  remained  a  debt  against  the  estate, 
and  being  indebted,  no  one  but  his  administrators  could  sustain  an 
action  to  recover  a  legacy  due  to  him. 

Chambers,  for  the  defendants  in  error. — This  cause  depends  upon 
the  construction  of  the  will  of  Christian  liege,  deceased.  The 
interest  of  Henry,  under  his  father's  will,  was  land.  Henry  could 
not  have  sued  Peter,  nor  could  Peter  have  sued  Henry  for  their 
respective  legacies.  The  land  was  devised  in  consideration  of  $f>0 
an  acre  to  one,  and  $00  an  acre  to  the  other,  and  which  was  not 
payable  by  Peter  to  his  brothers  and  sisters,  nor  by  Henry  to  his 
brothers  and  sisters,  but  which  was  payable  by  Henry  and  Peter 
respectively  to  the  executors  of  their  father,  Christian  liege,  and, 
therefore,  if  Henry  was  alive,  he  could  sustain  no  action  against 
Peter,  and  therefore  his  administrators,  much  less  his  heirs,  cannot 
sustain  it. 

If  the  will  of  Christian  liege  had  been  executed,  Peter  would 
have  to  pay  $600,  and  Henry  $400  per  annum  to  the  executors, 
and  this  was  to  be  equally  distributed  between  the  ten  .children  ;  out 
of  which  Henry's  share  would  be  $100  per  annum,  leaving  him  a 
debtor  to  the  estate  to  the  amount  of  $300  per  annum  ;  and  being 
thus  indebted  to  the  estate,  he  could  not  sustain  an  action  to  recover 
from  it.  Henry  having  taken  the  lands  devised  to  him  by  his 
father's  will,  became  personally  liable  for  the  payment  of  the  lega- 
cies ;  and  being  thus  a  debtor  to  the  fund  $10  for  every  $1  he  was 
to  receive,  neither  he,  his  heirs  nor  administrators,  can  recover. 


88  SUPREME  COURT  [Chambersburg 

[Ilege  r.  Ilege.] 

Peter  liege  had  no  election  to  make,  either  to  take  or  not  take 
the  luml  devised  to  him,  and  take  his  share  of  the  estate,  as  was  the 
case  with  Henry;  and  the  only  effect  which  the  agreement  of  the 
21st  December  1822  had  upon  the  situation  of  the  parties,  was  to 
give  to  Peter  a  share  in  the  estate,  upon  his  refusal  to  take  the 
devise,  which,  without  the  agreement,  he  would  not  have  been 
entitled  to. 


,  in  reply.  —  Samuel  Diehl  being  no  party  to  this  suit, 
cannot  be  affected  by  it  in  any  way.  It  is  not  the  true  construc- 
tion of  Christian  liege's  will,  that  the  whole  estate  was  a  general 
fund  fur  the  payment  of  the  legacies  ;  on  the  contrary,  it  is  the 
manifest  intention  of  the  testator  that  the  legacies  should  be  paid 
by  Henry  and  Peter  directly  to  the  legatees,  and  not  to  the.  ex- 
ecutors. 

.  Because  of  Peter  being  liable  to  pay  to  Henry  a  certain  legacy, 
and  Henry  being  liable  to  pay  to  Peter  a  certain  legacy,  both  of 
which  being  charged  upon  their  respective  devises,  the  law  does  not 
make  an  extinguishment  of  the  one  to  the  amount  of  the  other  ;  if 
it  did,  the  rule  must  necessarily  be  general,  and  take  effect  imme> 
diately  upon  the  death  of  the  testator  ;  and  the  law  would  be  the 
same,  although  the  one  or  the  other  may  have  assigned  his  legacy, 
or  the  fund  out  of  which  it  was  payable  may  have  been  assigned. 
Or  suppose  the  land  of  one  or  the  other  should  be  sold  for  the  debts 
of  the  testator  ?  The  consideration  of  these  supposed  cases  sug- 
gests difficulties  which  are  unanswerable,  and  lead  to  the  conclusion 
that  the  law  is  not  on  this  point  as  contended  for  by  the  defendants. 

The  opinion  of  the  court  was  delivered  by 

HISTON,  J.  —  This  was  a  case  stated  for  the  opinion  of  the  Com- 
mon Pleas,  on  the  will  of  Christian  Ilcge,  deceased,  and  the  facts 
whirh  have  occurred  since  his  death. 

Chri.->tian  liege,  by  his  last  will,  after  directing  his  debts  to  be 
paid,  ami  making  provision  for  his  wife,  devised  as  follows:  "To 
my  son  Henry  I  give  and  bequeath  two  hundred  acres  of  land,  lying 
and  situate  on  the  north  side  of  my  mansion-house  and  property, 
the  beginning  to  be  on  my  east  line  arid  run  a  westerly  course,  so 
as  to  be  equally  advantageous  to  both  tracts,  at  present  undivided. 
This  division  I  wish  Jacob  Hege,  and  two  discreet  neighbors,  to  be 
chosen  by  Jacob  Hege  ami  Henry  Hege,  to  determine.  This  two 
hundred  acres  I  value  to  Henry  Ilege  at  £f>0  per  acre,  payable  in 
instalments  of  $300  each  for  five  years;  after  five  years,  I  will  that 
he  pay  the  sum  of  $400  yearly,  until  the  whole  sum  be  discharged. 
If  Henry  Ilege  refuses  to  comply  with  these  terms,  it  is  my  will 
that  my  executors  sell  the  same  land  to  the  highest  bidder,  at  fair 
and  public  sale;  if  he  complies,  I  will  the  above  described  land  to 
him  and  his  heirs  and  assigns  for  ever. 


Oct.  1829.]  OF  PENNSYLVANIA.  89 

[liege  v.  Hege.] 

"  I  will  arid  bequeath  to  my  son,  Peter  Hege,  two  hundred  and 
thirty-six  acres  fifty-eight  perches  of  land  and  allowance,  including 
my  man-sion-house,  barn,  buildings  and  appurtenances  thereto  be- 
longing. This  land  lies  at  the  south  side  of  my  property,  which  I 
value  to  him  at  $60  per  acre,  payable  in  instalments  of  $500  per 
year,  for  five  years ;  then  the  instalments  shall  be  $600  per  year 
until  the  amount  is  paid.  My  will  is  that  Jacob  Hege  act  as  guar- 
dian of  Peter  Hege  until  he  is  twenty-one,  and  grant  the  privilege 
of  selling  off  fifty  or  sixty  acres  of  the  above  land,  to  be  sold  and 
conveyed  by  my  executors.  Jacob  Hege  shall  choose  out  the  part 
to  be  sold  where  it  will  least  injure  the  property.  The  above-men- 
tioned property  I  will  and  devise  to  Peter  Hege,  his  heirs  and  as- 
signs for  ever,  the  amount  being  discharged." 

lie  then  proceeded  to  order  a  sale  of  his  personal  property,  and 
of  a  tract  of  land  in  McQonnel's  cave,  &c.  "  Finally,  I  will  that 
each  of  my  children  receive  an  equal  share  of  my  whole  estate," 
&c.,  and  appointed  three  executors.  The  will  was  proved  20th 
May  1815. 

Henry  liege  took  possession  of  the  part  devised  to  him,  and  made 
four  payments,  and  died  16th  July  1820,  leaving  three  children, 
the  plaintiffs  in  this  cause.  After  his  death,  the  land  devised  to 
him  was  sold  by  order  of  the  Orphans'  Court  for  the  payment  of 
debts.  The  petition,  order  and  deed,  describe  it  particularly,  as 
two  hundred  acres  by  metes  and  bounds,  being  the  same  devise  to 
him  by  his  father,  and  it  was  asked  to  be  sold,  and  was  sold  ex- 
pressly subject  to  the  payment  of  the  remaining  sums,  to  which  it 
was  subjected  by  the  will  of  his  father.  Samuel  Diehl  was  the  pur- 
chaser. The  guardian  and  executors  sold  fifty  acres  of  the  part 
devised  to  Peter.  After  Peter  came  of  age,  he  determined  not  to 
take  the  land  devised  to  him  ;  and  his  brothers  and  sisters,  and  the 
guardian  of  Henry's  children  entered  into  an  agreement  on  the  20th 
of  December  1822,  in  which,  after  reciting  the  devise  to  him,  it 
was  "  mutually  agreed  between  Peter  and  his  brothers  and  sisters, 
legatees  as  aforesaid,  that  the  said  land  so  devised  to  Peter  He^e, 
should  be  sold  for  the  best  price  that  could  be  obtained  for  the  same, 
and  the  money  arising  from  the  sale  should  be  equally  divided 
among  the  children  of  the  said  Christian  Hege,  or  their  represent- 
atives, so  that  the  said  Peter  liege,  out  of  the  whole  real  estate  of 
said  Christian  Hege,  shall  receive  an  equal  share  with  his  brothers 
and  sisters,  and  no  more;"  and  then  persons  are  appointed  to  sell, 
and  the  legatees  covenant  to  release  to  the  purchaser. 

The  land  was  sold,  and  the  price  was,  for  the  purpose  of  this 
decision,  admitted  to  be  in  the  hands  of  those  who  sold,  who  are 
defendants. 

On  the  9th  of  March  1824,  the  administrators  of  Henry  settled 
their  account,  and  there  was  a  balance  in  their  favor  of  §124,  paid 
in  discharge  of  debts  beyond  the  amount  of  the  personal  estate  and 


00  SUPREME  COURT  [Chamberaburg 

[Hope  r  Hegc.j 

of  the  lands  sold,  and  were  discharged  by  the  Orphans'  Court,  be- 
fore this  suit  brought.  Jacob  liege,  one  of  the  defendants,  is  the 
surviving  executor  of  Christian  Ilege,  deceased. 

Samuel  Diehl,  who  purchased  the  land  devised  to  Henry,  claimed 
to  be  entitled  to  Henry's  share  of  the  land  devised  to  Peter,  subject 
to  the  payment  of  §GOO  per  year,  which  was  to  be  divided  among 
the  legatees,  of  whom  Henry  was  one,  in  equal  portions ;  and  con- 
tended that  all  the  interest  in  lands  devised  to  Henry  by  the  will 
of  his  father,  was  sold  and  purchased  by  him,  Diehl.  On  inspect- 
ing the  sale  on  the  records  of  the  Orphans'. Court,  it  is  not  so. 
There  is  no  room  for  dispute ;  it  is  the  two  hundred  acres  devised 
to  Henry,  by  the  will  of  his  father,  which  is  sold.  It  has  been 
contested  whether  Henry's  interest  in  the  land  devised  to  Peter 
was  land  or  personal  estate,  in  the  event  of  Peter  refusing  to  keep 
it,  but  it  is  entirely  unnecessary  to  decide  that ;  for  whether  it  was 
one  or  the  other,  it  was  not  embraced  in  the  application  for  sale,  in 
the  order  of  the  court,  nor  in  the  deed.  Henry  was  dead,  and  his 
land  sold,  and  deed  made,  in  June  1821.  Peter  did  not  refuse  to 
take  till  1822.  It  would  be  strange  if  the  Orphans'  Court  had 
ordered  a  debt  amounting  to  $1000,  and  falling  due  in  successive 
years,  in  instalments  of  $60  per  year,  to  be  sold  at  auction.  It 
would  be  still  more  strange  if  a  claim  of  this  kind,  charged  on  Peter's 
land,  should  be  transferred  by  a  sale  of  Henry's  interest  in  another 
and  different  tract ;  and  that  without  its  being  once  alluded  to  in 
the  evidence  of  that  sale.  Diehl  represents  Henry  entirely,  as  to 
his  interest  in  the  two  hundred  acres  devised  to  him,  because  he 
purchased  and  paid  for  that  interest,  but  he  does  not  represent 
Henry  as  to  anything  else  devised  to  him  by  that  will,  for  the  same 
reason,  to  wit:  that  he  has  not  bought  nor  paid  for  any  interest  in 
any  part  of  what  was  devised  to  Henry,  except  the  two  hundred 
acres  of  land. 

Another  point  was  made,  and  much  discussed,  whether  this  suit 
could  be  maintained  by  the  children  of  Henry,  or  must  be  brought 
by  his  administrators,  there  being  debts  yet  unpaid  ;  for  the  admin- 
istrators of  Henry,  having  paid  debts  of  his  beyond  the  assets  which 
came  to  their  hands,  stand  in  the  place  of  the  creditors  to  whom 
they  paid.  The  debts  are  the  debts  of  the  deceased,  as  much  as  if 
thev  yet  belonged  to  the  original  creditor. 

In  England,  lands  of  a  deceased  are  not  charged  with  the  debts, 
unless  of  a  particular  description  ;  here  all  lands  left  by  a  deceased 
are  liable  for  every  debt  of  a  deceased  ;  there,  lands  descend  gene- 
rally to  one  heir;  here,  they  go  to  several,  if  several  stand  in  the 
same  relation  to  the  intestate.  There,  lands  go  in  one  direction, 
and  personal  estate  is  distributed  differently.  Here,  in  almost  every 
case,  the  lands  and  personal  estate  go  to  the  same  persons,  and  in 
the  same  proportions ;  all  the  cases  cited  in  this  cause  to  show  what 
in  England  goes  to  the  heir,  and  what  to  the  executor,  are  inappli- 


Oct.  1829.]  OF  PENNSYLVANIA.  91 

[liege  v.  liege.] 

cable  to  this  case.  Where  debts  are  unpaid  in  this  country,  they 
are  levied  equally  from  lands  or  goods,  stated  to  be,  and  actually 
for  this  purpose  being,  in  point  of  law,  in  the  hands  of  the  adminis- 
trators. Where  the  lands  themselves  are  to  be  recovered,  the  suit  is 
by  the  heirs.  Where  debts  are  to  be  recovered,  or  personal  property, 
or  damages  for  breach  of  contract  with  the  deceased,  the  adminis- 
trator must  bring  the  suit.  I  shall,  on  this  subject,  only  refer  to  the 
case  of  Lee  v.  Wright,  in  1  Kawle  149,  decided  by  this  court  in 
December  Term  last,  in  which  everything  contended  for  in  this 
case  was  considered. 

The  decision  of  the  court  was  right  on  both  points,  and  judgment 
is  affirmed. 

GIBSON,  C.  J. — As  I  concur  on  every  point  but  that  which  regards 
the  right  of  the  plaintiffs  to  maintain  the  action  in  their  own  names, 
it  is  unnecessary  to  state  more  of  the  case  than  relates  to  the  ques- 
tion. It  is  thus.  A  father  devises  a  plantation  to  eacli  of  his  sons, 
Henry  and  Peter,  on  terms  of  paying  a  specific  price,  to  be  distri- 
buted among  all  his  children ;  and  directs  his  executors  to  sell  the 
plantation  of  Henry  if  he  should  refuse  to  accept  on  the  terms  pre- 
scribed, but  gives  no  such  direction  with  respect  to  the  plantation 
of  Peter.  Henry  accepts,  pays  part  of  the  price,  and,  while  Peter  is 
a  minor,  dies,  leaving  the  plaintiffs,  his  children.  The  guardian  of 
Peter  enters  on  the  plantation  devised  to  him,  and  pays  part  of  the 
price  ;  but  Peter  himself  on  coming  of  age,  agrees  with  his  brothers, 
sisters  and  the  plaintiffs,  by  writing  under  seal,  to  have  it  sold,  "the 
said  legatees,"  as  it  is  expressed,  "getting  their  share  of  the  pur- 
chase-money, in  satisfaction  of  what  they  would  have  got  from 
Peter,  under  the  will."  The  land  is  in  fact  so  sold,  the  price 
received  by  the  defendants,  and  the  plaintiffs  having  sued  for  their 
share  of  it,  are  met  by  an  objection  that  the  action  ought  to  be  in 
the  name  of  the  father's  administrator. 

It  does  not  appear  whether  Peter,  on  coming  of  age,  accepted  or 
rejected  the  devise.  That  he  was  concluded  by  the  election  of  his 
guardian  will  not  be  pretended.  The  doctrine  is  accurately  stated 
in  Brown  v.  Caldwell,  10  S.  &  R.  114,  where  it  was  held  that  the 
act  of  a  guardian,  in  agreeing  to  what  in  this  state  is  popularly 
called  a  consen table  line,  may  be  avoided  by  the  ward  immediately 
on  his  coming  of  age.  Either,  then,  he  accepted,  or  he  did  not. 
If  he  accepted,  the  estate  became  absolute  in  him,  and  he  became 
personally  indebted  for  the  price  of  it  to  his  father's  executors,  to 
whom  alone  recourse  could  be  had  by  Henry,  or,  so  far  as  might  be 
necessary  for  the  payment  of  his  debts,  by  his  administrator.  If 
Peter  became  indebted  to  the  executors,  the  money  was  demandable 
by  them,  for  payment  of  his  father's  debts,  and  distributable  to  the 
administrator  of  Henry,  by  them  alone.  But  without  an  interest 
in  the  land,  neither  Henry  nor  his  administrator  could  make  pn>- 


92  SUPREME  COURT  [Cliambersburg 

[Hope  r.  Hcge.] 

tcncc  to  an  action  for  the  proceeds  of  it.  The  utmost  that  the  ad- 
ministrator could  insist  on,  would  be  that  no  agreement  of  the 
plaintiffs  with  the  other  legatees  should  prevent  him  from  recovering 
from  the  executors  as  much  of  Henry's  share  of  the  money  owing 
by  Peter  as  would  enable  him  to  pay  Henry's  debts  ;  but  for  all 
beyond,  the  defendants  would  be  liable  to  the  plaintiffs  by  force  of 
-their  agreement.  If  then  the  land  vested  in  Peter,  the  administrator 
would  not  have  a  color  of  title  to  demand  any  part  of  the  price  of 
it  from  the  defendants. 

But  what  if  Henry,  as  he  may  have  done,  rejected  the  devise? 
The  land,  in  that  aspect  of  the  case,  fell  back  into  the  estate  of  his 
father,  who  died  intestate  in  respect  of  it,  just  as  if  it  had  not  been 
devised  ;  consequently  it  descended  in  the  first  place  to  Henry  and 
the  other  children  as  tenants  in  common,  and  afterwards  as  regards 
his  estate  in  it  to  the  plaintiffs.  The  interest  of  Henry  while  he 
lived,  and  of  the  plaintiffs  after  his  death,  was  real  estate ;  and  it 
vras  their  land  which  was  sold  by  virtue  of  the  agreement.  Neither 
Ilcnrv  nor  any  one  who  represents  him  could  claim  an  interest  in 
the  price  of  it  under  the  will,  for  neither  the  land  nor  the  price  of 
it,  passed  by  the  will.  We  have  then  the  naked  case  of  a  debt 
owing,  not  to  the  intestate's  father,  from  whom  the  land  descended, 
but  to  his  children  ;  and  from  agents  who  have  received  the  price 
of  their  land,  in  pursuance  of  an  agreement  to  pay  it  over  to  them, 
notwithstanding  which,  it  is  said  the  money  can  be  reached  only 
through  the  administrator  of  their  father,  because  it  may  possibly 
be  needed  to  pay  his  debts. 

When  the  children  of  an  intestate  have  sold  that  which  descended 
from  him,  I  believe  it  has  never  been  understood  that  either  the 
administrator  or  the  creditors  can  interpose  a  claim  to  the  purchase- 
money.  The  purchaser  stands  in  the  place  of  the  children  ;  and 
the  remedy  of  the  creditors  is  by  judgment  against  the  administra- 
tor, and  execution  of  the  land  as  a  fund  into  whose  hands  soever  it 
may  have  come;  or  where  the  administrator  interferes  by  a  sale  of 
it  under  an  order  of  the  Orphans'  Court.  In  the  case  of  a  judicial 
sale,  p< il icy  re<ju ires  that  a  purchaser  have  a  clear  title;  but  the 
principle  has  never  before  been  applied  to  a  private  sale,  which  not 
being  under  the  supervision  of  a  superior  power  to  make  a  proper 
application  of  the  purchase-money,  would  in  every  instance  jeopard 
the  security  of  lien  creditors.  In  fact,  a  lien  would  be  entirely  worth- 
less, if  the  land  were  discharged  by  the  sale,  and  the  lien  shifted  so 
as  to  attach  it  to  the  purchase-money.  The  present  is  the  ease  of  a 
private  sale,  and  us  well  might  the  widow  of  Henry  claim  a  share  of 
the  purchase-money,  although  her  interest  is  gxpressly  charged  on 
the  land  with  a  right  to  distrain.  If  then  by  force  of  the  intestate 
laws,  the  debts  be  charged  on  the  land  as  a  fund,  it  would  be  mani- 
festly unjust  to  have  them  paid,  in  case  of  the  purchaser,  out  of  the 
price  coming  to  the  children,  who  sold  no  more  than  their  interest, 


Oct.  1H29.J  OF  PENNSYLVANIA.  93 

[Hege-  v.  Hege.] 

and  consequently  only  what  might  remain  after  the  debts  should  be 
paid.  On  what  ground  then  could  the  administrator  interpose  ? 
That  he  can  have  an  action  in  a  representative  capacity  only  for  a 
debt  which  was  owing  to  the  decedent  himself,  is  a  common-place 
principle,  for  which  it  would  look  like  affectation  to  cite  an  authority ; 
and  as  the  money,  when  recovered,  would  not  be  assets,  I  can  per- 
ceive no  good  reason  why  he  should  maintain  the  action. 

Judgment  affirmed. 

Distinguished,  5  Wh.  357,  358. 


Cobean  against  Thompson. 

"Yeoman"  is  a  sufficient  designation  of  the  occupation  of  the  owner  of  a 
slave,  under  the  Act  of  1780. 

ERROR  to  Adams  county. 

The  only  question  in  this  case  is,  whether  "Yeoman"  is  such  a 
designation  of  the  occupation  of  a  master  as  is  required  by  the  Act 
of  Assembly  for  the  gradual  abolition  of  slavery,  to  be  returned  to 
the  clerk  of  the  Quarter  Sessions. 

Stevens,  for  plaintiff  in  error,  contends  that  in  this  country  the 
name  yeoman  Mid  farmer  are  synonymous  terms,  and  if  farmer  is  a 
sufficient  designation  under  the  act,  yeoman  is :  Walker's  Diction- 
ary, word  "  Yeoman." 

Miller,  for  defendant  in  error. — The  5th  section  of  the  Act  of 
1780,  Purd.  Dig-,  requires  the  occupation  of  the  owner  to  be  set  out 
on  the  record,  and  yeoman,  in  this  country,  is  not  such  a  designation 
as  will  distinguish  a  farmer  from  any  other  employment  or  occupa- 
tion:  Commonwealth  v.  Barker,  11  S.  <fc  R,  360.  In  this  case  it 
was  proved  that  the  master  was  a  farmer,  and  it  would  have  been 
easy  to  have  designated  him  as  such :  Wilson  r.  Belinda,  3  S.  &  R. 
401. 

BY  THE  COURT. — The  designation  is  sufficiently  certain. 

Judgment  reversed. 


94  SUPREME  COURT  [Chamberdurg 

\ 

Snyder  against  Commonwealth. 


IN    ERROR. 


The  neglect  or  refusal  of  a  sheriff  to  commit  a  person  convicted  of  fornica- 
tion until  the  sentence  should  be  complied  with,  according  to  the  decree  of 
the  court,  makes  him  liable  upon  his  official  bond,  to  the  mother  of  the 
child,  for  the  amount  which  the  person  convicted  was  sentenced  to  pay  to 
her  for  its  maintenance. 

THIS  was  a  writ  of  error  to  the  Common  Pleas  of  Franklin  county, 
upon  the  return  of  which  the  record  exhibited  an  action  of  debt, 
brought  by  the  defendant  in  error,  Catherine  Stillinger,  against  the 
plaintiff  in  error,  Jeremiah  Snyder,  upon  his  official  bond,  given  as 
sheriff  of  Franklin  county.  A  declaration  in  debt  was  filed,  and 
the  following  breach  of  the  condition  of  the  bond  was  assigned  : 
"  That  Simon  Eckert,  on  the  18th  April  1820,  in  the  Court  of 
Quarter  Sessions  of  Franklin  county,  was  convicted  of  fornication 
and  bastardy,  and  sentenced  to  pay  Catherine  Stillinger,  the  mother 
of  the  illegitimate  child,  $1  per  week,  until  the  child  should  arrive 
at  the  ago  of  seven  years,  to  be  paid  quarterly ;  to  be  bound  him- 
self in  $1000,  and  one  good  security  in  $1000,  pay  the  costs,  and 
stand  committed  till  the  sentence  was  complied  with.  Yet  the  said 
Jeremiah  Snyder,  then  being  high  sheriff  of  said  county,  did  not 
commit  the  said  Simon,  although  he  did  not  pay  or  give  security,  as 
was  commanded  by  the  said  court." 

The  facts  being  undisputed,  the  court  below  (Thompson,  presi- 
dent,) was  of  opinion  that  the  plaintiff  was  entitled  to  recover ;  to 
which  opinion  exception  was  taken,  and  it  was  the  only  error 
assigned  in  this  court,  which  was  argued  by 

Crawford,  for  the  plaintiff  in  error. — The  Act  of  28th  March 
1803,  sect.  3,  Purd.  Dig.  755,  provides  the  form  of  the  recogni- 
sance and  bond  of  a  sheriff,  and  that  bond  binds  the  officer  alone  to 
the  performance  of  duties  in  civil  cases.  Our  Act  of  Assembly  is 
assimilated  to  the  form  of  the  oath  of  a  sheriff  in  England  ;  and 
although  there  are  many  cases  of  indictments  against  a  sheriff  there 
for  breaches  of  duty  in  criminal  cases,  yet  no  case  can  be  found 
where  a  civil  suit  was  sustained  against  him  for  such  breach  of  duty: 
6  Bac.  Abr.  146,  tit.  Sheriff;  Hawk.  Pleas  of  the  Crown,  Book,  2 
sec.  22;  1  Hale's  Pleas  of  the  Crown,  507. 

A  Court  of  Quarter  Sessions  has  all  the  power  necessary  to  enforce 
its  own  sentence,  and  therefore  the  Court  of  Common  Pleas  can  have 
no  jurisdiction  of  this  suit.  A  sheriff  is  liable  upon  his  bond  for 
fines  collected  on  sentences  of  the  criminal  courts,  but  it  was  neces- 
sary to  provide  this  remedy  by  the  Acts  of  1803,  and  30th  March, 


Oct.  1S29.]  OF  PENNSYLVANIA.  95 

[Snyder  ».  Commonwealth.] 

1811.  A  recognisance  taken  in  the  Court  of  Quarter  Sessions, 
could  not  have  been  sued  in  the  Common  Pleas,  if  it  had  not  been 
for  the  Act  of  1783,  authorizing  such  suit. 

Chambers,  for  the  defendant  in  error. — The  bond  of  the  defend- 
ant belowr  contains  a  condition  "  that  he  will  execute  all  process 
to  him  directed,  and  faithfully  perform  all  the  duties  and  trusts 
appertaining  to  the  office  of  the  sheriff."  The  written  decree  of 
the  court  might  be  termed  its  process,  directed  to  the  sheriff,  and 
which  he  was  bound  to  execute,  and  upon  his  neglect  or  refusal  so 
to  do,  the  condition  of  his  bond  was  broken.  The  decree  that 
Simon  Eckert  should  pay  to  Catherine  Stillinger,  was  a  decree  of 
the  court,  separate  and  distinct  from  the  judgment :  Duncan  v. 
Commonwealth,  4  S.  &  R.  449.  But  it  was  certainly  a  duty  apper- 
taining to  the  office  of  sheriff,  to  commit  Eckevt  until  the  sentence 
was  complied  with,  and  this  he  neglected  or  refused  to  do ;  whereby 
his  bond  was  forfeited. 

Crawford,  in  reply. — In  the  case  of  Duncan  v.  Commonwealth, 
it  is  not  decided,  that  that  part  of  the  sentence  of  the  court  which 
directs  a  certain  sum  of  money  to  be  paid  to  the  mother,  for  the 
support  of  the  child,  is  not  part  of  the  judgment ;  but  on  the  con- 
trary, it  is  there  said  to  be  part  of  the  judgment,  but  a  part  which 
may  be  reversed  without  reversing  the  whole. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J.  —The  defendant  stipulates,  that  he  will  well  and 
truly  serve  and  execute  all  writs  and  process  to  him  directed ;  and 
that  he  will  well  and  faithfully  execute  and  perform  all  and  every 
of  the  trusts  and  duties  of  the  office  of  sheriff.  The  plaintiff 
assigns  for  breach  of  the  sheriff's  bond,  the  sentence  of  the  Court 
of  Quarter  Sessions,  that  Simon  Eckert,  convicted  of  being  the 
father  of  an  illegitimate  child,  should  pay  a  sum  of  money  to  the 
plaintiff,  Catherine  Stillinger,  and  give  security  for  a  performance 
of  the  order,  and  stand  committed  until  the  sentence  should  be 
complied  with.  And  the  plaintiff  avers  that  the  defendant,  Jere- 
miah Snyder,  being  high  sheriff  of  the  county  of  Franklin,  did  not 
commit  the  said  Simon,  although  he  did  not  pay  or  give  security, 
as  was  commanded. 

This  was  an  adjudication,  which  doubtless  the  Court  of  Quarter 
Sessions  was  competent  to  make,  and  which  it  is  conceded,  the 
sheriff  might  have  been  compelled  to  execute  by  attachment,  or 
punished  by  indictment  for  not  executing,  and  this  on  the  ground, 
that  it  was  a  neglect  or  refusal  to  perform  a  duty  appertaining  to 
his  office.  But  these  are  not  (as  has  been  contended),  the  only 
remedies,  for  it  is  manifest  that  an  attachment  or  indictment,  would, 
in  many  cases,  leave  the  plaintiff  without  relief. 


«J6  SUPREME  COURT  \_Chambersburg 

[Snydcr  v.  Commonwealth.] 

In  the  order  of  the  court,  the  money  is  awarded  to  the  mother, 
for  the  support  of  the  child,  and  security  is  demanded  for  a  com- 
pliance with  the  sentence,  and  an  indemnification  of  the  county, 
from  the  maintenance  of  the  bastard.  It  therefore,  although  in 
form  an  indictment,  partakes  of  the  nature  of  a  civil  action. 

The  neglect  or  refusal  to  carry  into  effect  the  judgment  of  the 
court,  is  a  failure  on  the  part  of  the  sheriff,  to  execute  a  process  (in 
the  nature  of  an  execution),  of  a  court  of  competent  jurisdiction, 
and  is  not  a  faithful  performance  of  his  duty,  which  brings  the  case 
within  the  words  and  spirit  of  the  condition  of  his  bond.  The  court 
therefore  believe  that  the  breach  has  been  well  assigned,  that  the 
plaintiff  has  sustained  injury  from  the  conduct  of  the  sheriff,  and 
the  judgment  should  be  affirmed. 

Judgment  affirmed. 

Followed,  3  Barr  273,  but  the  citation  is  not  fully  supported  by  the  report 
of  the  principal  case. 

Referred  to,  and  followed  in  Smith  v.  Commonwealth,  9  Smith  320. 


McLanahan  against  McLanahan. 

IN    ERROR. 

Judicial  sales  of  land,  diverts  all  liens,  whether  general  or  specific. 

When  a  legacy  is  charged  upon  land,  the  sheriff's  vendee  takes  the  land, 
discharged  from  the  lien  of  the  legacy.  And  a  purchaser  of  land,  sold  by  an 
administrator,  by  an  order  of  the  Orphans'  Court,  takes  the  land  discharged 
of  the  lien  of  a  legacy. 

To  recover  a  legacy  charged  upon  land,  the  most  approved  form  is  to  bring 
the  suit  against  the  executors  and  the  tcrre-tcnants  of  the  land  generally  by 
name. 

If  the  terre-tenants  have  not  all  been  summoned,  the  plaintiff  may  pray  a 
writ  to  summon  the  person  alleged  to  be  terre-tenant ;  and  by  this  means  ho 
may  l>e  made  a  party  in  the  same  manner  as  if  he  had  been  summoned  or 
returned  by  the  sheriff,  as  terre-tenant  of  the  land. 

When  a  testator,  by  his  will,  blends  his  real  and  personal  estate,  he  thereby 
charges  his  land  with  the  payment  of  legacies. 

THE  record  of  this  case,  returned  on  a  writ  of  error  to  the  Court 
of  Common  Pleas  of  Franklin  county,  showed,  that  it  was  an  action 
brought  by  the  defendant  in  error,  who  was  plaintiff  below,  against 
the  plaintiffs  in  error,  defendants  below,  to  recover  a  legacy  due  to 
Martha  McLanahan,  under  the  will  of  her  husband,  John  McLana- 
han. The  material  part  of  the  will  is  as  follows : 

"  First,  I  give  and  bequeath  unto  my  beloved  wife  Martha,  the 
sum  of  GOO/.,  specie,  Pennsylvania  cnrrency — WQl.  thereof  is  to 


Oct.  1829.]  OF  PENNSYLVANIA.  97 

[McLanuhan  v.  McLanahan.] 

be  paid  unto  her  one  year  after  ray  decease,  by  my  executors,  and 
the  residue  in  gales  of  257.  a  year,  yearly  and  every  year,  until  the 
whole  sum  of  6007.  is  fully  paid  unto  her,  her  heirs  or  assigns;  and 
also  is  to  have  a  room  to  herself  in  the  mansion-house,  and  a  com- 
fortable living;  and  also  to  have  one  mare  arid  two  cows  to  herself, 
to  be  kept  and  fothercd  on  the  plantation  for  her  use,  with  stable 
room  for  the  same,  during  her  widowhood.  To  my  sons  John, 
Thomas  and  Michael  I  give  and  bequeath  all  ray  real  and  personal 
estate,  with  all  the  appurtenances  thereto  belonging,  excepting  such 
part  as  hereafter  reserved  for  the  remaining  legatees,  subjecting 
my  land,  nevertheless,  to  be  liable  to  the  several  payments  here- 
after mentioned.  To  the  legatees  of  said  estate  the  land  is  to  be 
equally  divided  in  quantity  and  quality,  having  due  regard  to  the 
real  value  of  the  same,  to  be  divided  by  themselves,  and  in  case  of 
disagreement,  to  choose  men  for  the  same,  allowing  my  eldest  son, 
John,  the  mansion-house,  and  that  part  which  will  be  most  suitable 
for  the  same  ;  allowing  him,  likewise,  2007.  advantage  in  said  division 
on  account  of  his  mother's  maintenance.  To  my  son  Samuel,  I 
give  and  bequeath  the  sum  of  1007.,  which  he  has  already  received. 
To  my  son  Josiah,  I  give  and  bequeath  the  sum  of  400/.,  together 
with  what  he  has  already  received,  to  be  paid  to  him  in  manner  fol- 
lowing :  507.  three  years  after  my  decease,  and  then  507.  a  year 
until  the  whole  sum  is  fully  paid.  To  my  daughter  Martha  I  will 
and  bequeath  the  sum  of  20s.,  and  furthermore  allow  my  beloved 
wife  Martha,  and  my  son  John,  to  pay  her  1007.,  or  to  her  children, 
to  which  either  they  please.  To  my  daughters,  Jane,  Rebecca, 
Lethis  and  Elizabeth,  I  will  and  bequeath  the  sum  of  2507.  each, 
together  with  good  bed  and  bed-clothing  to  each,  deducting  from 
Jane  the  value  of  what  she  has  already  received  in  stock  and  fur- 
niture, and  then  to  be  paid  in  the  following  manner,  that  is  to  say, 
to  my  daughter  Rebecca,  the  sum  of  507.  one  year  after  my  decease, 
and  two  years  after  my  decease,  507.  unto  my  daughter  Jane,  and 
so  on  yearly  and  alternately,  until  the  aforesaid  legacy  is  fully  paid 
unto  them,  their  heirs  or  assigns ;  and  then  is  to  pay  507.  to  my 
daughter  Lethis  in  one  year  following ;  and  then  507.  the  year  after 
unto  my  daughter  Elizabeth,  and  so  on  alternately,  507.  yearly, 
until  their  aforesaid  legacies  is  paid  unto  them,  their  heirs  and 
assigns  ;  and  to  my  daughter  Elenor,  I  will  and  bequeath  the  sum 
of  4007.,  out  of  which  she  is  to  get  sufficient  schooling,  and  the 
remainder  to  be  paid  in  the  following  manner :  507.  to  be  paid  to 
her  again  she  will  be  eighteen  years  of  age,  and  then  507.  yearly 
until  the  aforesaid  sum  is  fully  paid  unto  her,  and  for  the  purpose 
aforesaid.  I  nominate,  ordain  and  appoint  my  three  sons,  John, 
Thomas  and  Michael,  to  be  my  lawful  executors  of  this  my  last 
will  and  testament,  to  pay  and  recover  all  just  debts,  and  discharge 
the  legacies  within  mentioned." 
1  p.  &  W._7 


98  SUPREME  COURT  [Chamberslmrg 

[McLanahan  r.  McLanahan.] 

On  the  16th  of  December  1824,  the  following  declaration  was 
filed : 

"  John  McLanahan  and  Michael  McLanahan,  both  of  the  county 
aforesaid,  yeoman,  surviving  executors  of  the  last  will  of  John 
McLanahan  of  said  county  deceased,  were  attached  to  answer 
John  Wvant,  administrator  of  the  goods  and  chattels  of  Martha 
McLanahan.  deceased,  of  a  plea  of  trespass  on  the  case,  &c..  and 
whereupon  the  said  John  Wyant,  by  George  Chambers  and  Joseph 
Chambers,  his  attorneys,  complains,  that  whereas  John  McLanahan 
in  his  lifetime,  to  wit,  the  7th  day  of  July  17D7,  at  the  county 
aforesaid,  by  his  last  will  and  testament,  in  writing  duly  executed, 
did  among  other  things,  bequeath  unto  his  wife,  Martha  McLana- 
han, the  sum  of  600/.,  to  be  paid  as  follows,  to  wit:  100/.  to  be 
paid  the  said  Martha  one  year  after  the  decease  of  the  said  testator, 
and  the  remainder  thereof  in  gales  of  2/W.  per  year,  yearly,  and 
every  year  thereafter,  until  the  whole  sum  of  »>00/.  was  fully  paid 
to  the  said  Martha,  her  heirs  and  assigns.  And  that  the  said  testa- 
tor, by  his  same  will,  did  further  devise  and  bequeath  to  his  said 
wife  Martha,  a  room  in  his  mansion-house  and  a  comfortable  living, 
and  also  one  mare  and  two  cows  to  be  kept  on  the  plantation  of  the 
said  testator  during  the  widowhood  of  the  said  Martha ;  and  the 
said  testator,  John  McLanahan,  did,  by  his  same  will,  devise  to  his 
three  sons,  John,  Thomas  and  Michael,  all  his  real  and  personal 
estate,  excepting  such  portion  of  his  personal  estate  as  was  by  his  will 
otherwise  disposed  of;  and  by  his  last  will  and  testament,  did 
therein  appoint  his  three  sons,  John,  Thomas  and  Michael,  execu- 
tors, to  pay  and  receive  all  just  debts,  and  discharge  the  legacies 
mentioned  in  said  will,  and  the  said  John  Wyant  in  fact  saith,  that 
after  the  making  of  said  will,  to  wit,  the  1st  day  of  March  171)8, 
the  said  John  McLanahan,  deceased,  and  the  aforesaid  sons,  John, 
Thomas,  and  Michael  McLanahan,  did  duly  prove  the  said  will  on 
the  day  and  year  last  aforesaid,  and  took  upon  themselves  the  bur- 
den of  the  execution  thereof,  and  did  then  and  there  possess  them- 
selves of  all  the  real  and  personal  estate  whereof  the  said  testator 
died  seised  and  possessed  ;  and  the  said  John  Wyant  further  in  fact 
saith  that  the  estate  of  the  said  testator,  to  a  great  amount  beyond 
all  debts,  and  funeral  expenses,  and  legacies  mentioned  in  said  will, 
came  into  the  hands  and  possession  of  the  said  executors,  to  wit,  at 
the  rounty  aforesaid  :  arid  the  said  John  Wyant  doth  further,  in 
fact,  say,  that  the  said  executors,  John,  Thomas  and  Michael,  did,  as 
devisees  of  the  real  estate  of  the  said  testator,  immediately  after  the 
decease  of  the  said  testator,  enter  on  the  lands  which  were  of  the 
said  deceased,  in  the  said  county  of  Franklin,  and  possess  and  enjoy 
the  same,  as  devised  to  them  in  said  last  will  and  testament;  and 
that  afterwards,  to  wit,  the  third  day  of  May,  1817,  Thomas  Mc- 
Lanahan, one  of  the  said  executors  and  devisees,  died,  by  reason 


Oct.  1829.]  OF  PENNSYLVANIA.  09 

[McLanahan  v.  McLanahan.] 

whereof  the  said  John  and  Michael  McLanahan  became  the  surviv- 
ing executors  of  said  testator,  and  of  the  said  lands  and  tenements 
so  devised,  and  of  a  value  more  than  sufficient  to  pay  all  debts  and 
legacies,  the  said  John  and  Michael  McLanahan,  devisees  as  afore- 
said, were  at  the  irnpetration  of  this  writ,  possessed,  together  with 
Jacob  Ickus,  named  in  the  same  writ,  as  terre-tenant,  and  which 
said  Ickus  doth  hold  and  enjoy  the  possession  of  said  premises,  as 
the  tenant  of  the  heirs  and  representatives  of  the  said  Thomas  Mc- 
Lanahan, deceased.  By  reason  whereof  the  said  executors  and 
devisees  became  liable  to  pay  to  the  said  Martha,  in  her  lifetime,  the 
said  sum  of  GOO/.  ;  nevertheless  the  said  John,  Thomas  and  Michael, 
the  said  sum  of  GOOZ.,  or  any  part  thereof,  to  the  said  Martha,  in 
her  lifetime,  or  to  the  said  John  Wyant,  after  the  death  of  said 
Martha  (who  died,  to  wit,  the  15th  day  of  June,  in  the  year  1819, 
and  to  which  said  John  Wyant,  after  the  death  of  the  said  Martha, 
to  wit,  the  20th  day  of  September  1821,  administrator  of  the  goods 
and  chattels,  rights  and  credits  which  were  of  the  said  Martha,  was 
committed  by  the  register  of  the  said  county  of  Franklin,  in  due 
form  of  law),  yet  hath  not  paid,  although  to  do  the  same,  the  said 
John,  Thomas  and  Michael,  executors  and  devisees  as  aforesaid,  by 
the  said  Martha  in  her  lifetime,  to  wit,  the  1st  day  of  January 
1817,  and  at  other  days  and  times  before  and  after  said  day,  and 
the  said  John  and  Michael,  surviving  executors  and  devisees  since 
the  death  of  the  said  Thomas  by  the  said  John  Wyant  since  the 
death  of  the  said  Martha,  were  requested ;  but  the  said  legacy 
to  the  said  Martha  in  her  lifetime,  and  to  the  said  John  Wyant, 
since  the  death  of  the  said  Martha,  the  said  John  McLanahan,  and 
Michael  McLanahan  to  pay  have  refused,  and  the  same  to  pay  to 
the  said  John  Wyant,  the  said  John  and  Michael  McLanahan,  sur- 
viving executors  and  devisees  as  aforesaid,  still  do  refuse,  to  the 
damage  of  the  said  John  Wyant  1000/.,  &c.'? 

28th  March  182G,  defendants,  John  and  Michael,  pleaded  in 
abatement  as  follows : 

"  And  now  the  said  John  and  Michael  by  James  Dunlop,  their 
attorney,  come  and  defend  the  force  and  injury  when,  «$ce.,  and  say, 
that  the  said  plaintiffs  ought  not  to  have  and  maintain  his  aforesaid 
action  thereof  against  the  said  John  and  Michael,  because  they  are 
not  chargeable  as  executors  of  the  said  John  McLanahan,  deceased, 
with  the  payment  of  the  said  legacy  of  2f>0/.,  but  that  the  lands  and 
tenements  of  the  said  John  McLanahan,  deceased,  were,  by  the  last 
will  and  testament  of  said  John,  subjected  to  the  payment  of  the 
said  2 ")()/.,  and  so  charged  and  encumbered  were  by  the  said  last 
will  and  testament  devised  to  the  said  John  and  Michael,  and 
Thomas,  another  son  of  the  said  John,  deceased. 

"  And  the  said  defendants  further  say,  that  the  said  Thomas  so 
being  jointly  seised  with  the  said  John  and  Michael,  afterwards,  to 


100  SUPREME   COURT  [Chambertlmry 

[McLanahan  t.  McLanahan.] 

wit,  January  term,  one  thousand  eight  hundred  and  nine,  out  of  the 
Court  of  Common  Pleas  in  and  for  said  county  of  Franklin,  sued 
and  prosecuted  a  writ  of  partition  against  the  said  John  and  Mi- 
chael, and  that  after  the  return  thereof,  viz.,  on  the  oth  day  of 
March  1811,  the  said  Thomas,  John  and  Michael,  parties  thereto 
by  consent,  submitted  the  matters  thereof  to  certain  referees,  mutu- 
ally chosen,  who  divided  the  said  lands  so  devised  to  and  amongst 
the  said  John,  Michael  and  Thomas,  and  made  report  to  the  said 
court  to  January  term  1811,  agreeably  to  the  said  submission,  which 
said  report  was  then  confirmed  by  the  said  court,  and  fully  acqui- 
esced in  by  the  said  parties  continually  thereafter. 

"And  the  said  John  and  Michael  further  say  that  afterwards,  and 
in  pursuance  thereof,  the  said  John,  Michael  and  Thomas  took  pos- 
session of  their  several  purparts  so  laid  oft'  and  divided,  and  became 
severally  seised  of  their  separate  and  distinct  purparts,  according  to 
the  said  report  and  judgment  of  said  court,  each  one  in  his  own 
demesne  as  of  fee  and  being  so  seised  of  their  distinct  and  separate 
purparts  ;  the  said  Thomas  afterwards,  viz.,  on  the  day  of 

April  1811,  died,  leaving  three  children,  viz.,  Alexander,  Amelia 
and  Catharine,  who,  at  the  time  of  the  impetration  of  the  writ  in 
this  cause,  were  and  still  are,  in  full  life  and  residing  within  the 
jurisdiction  of  this  court. 

"  And  the  said  John  and  Michael  further  say,  that  John  Flanagan, 
Esq.,  who  was  duly  appointed  administrator  of  all  and  singular,  the 
goods  and  chattels,  rights  and  credits  which  were  of  the  said  Thomas, 
by  the  register  of  the  said  county  of  Franklin,  afterwards,  to  wit,  on 
the  21st  day  of  May  1818,  sold  and  conveyed  of  the  said  purpart 
of  said  Thomas,  in  pursuance  of  a  decree  of  the  Orphans'  Court  of  said 
county,  nine  acres  and  three  perches  to  John  McGee ;  twenty-one 
acres  and  eighty-seven  perches,  to  Richard  I  lay  den ;  thirty-five  acres 
and  ninety-eight  perches  to  Doctor  John  Oelig;  fourteen  acres  one 
hundred  and  thirty-two  perches  to  James  Gettys,  and  that  two  hun- 
dred acres  of  the  said  purpart  of  the  said  Thomas,  was  purchased  at 
sheriff's  sale  from  Archibald  Flemming,  Esq.,  high  sheriff'  of  said 
county,  by  Samuel  Hughes,  Esq..  which  said  two  hundred  acres 
were  sold  by  the  said  sheriff,  under  a  fieri  facias  and  venditioni 
exponas,  issued  out  of  said  Court  of  Common  Pleas  of  said  county, 
of  which  said  two  hundred  acres  the  said  Samuel  is  now  seised  in 
his  demesne  as  of  fee,  all  which  several  tracts  or  parcels  thus  sold 
and  conveyed,  were  parts  of  the  said  purpart  of  which  the  s;iid 
Thomas  so  died  seised.  And  the  said  John  and  Michael  further 
say,  that  the  said  John  Oelig,  after  the  said  sale  so  made  to  him  by 
the  said  administrator,  sold  and  conveyed,  by  deed,  the  said  thirty- 
five  acres  to  James  Burns  and  Isaac  Moorehead,  as  an  insolvent 
debtor,  under  the  laws  of  this  Commonwealth,  in  trust,  for  the  use 
of  his  creditors ;  and  that  the  said  John  McGee,  after  the  21st  day 


Oct.  1829.]  OF  PENNSYLVANIA.  101 

[McLanahan  v.  McLanahan.] 

of  March  1818,  died,  leaving  Bernard  McGee,  his  brother,  his  sole 
heir-at-law,  all  which  said  several  persons,  viz. :  Bernard  McGee, 
Richard  Ilayden,  James  Burns,  Isaac  Moorehead,  Martin  Funk, 
Samuel  Hughes  and  James  Gettys,  at  the  irnpetration  of  the  said 
writ  issued  in  this  cause,  were  and  still  are  tenants  of  the  said 
several  purparts,  according  to  their  said  respective  titles,  of  which 
the  said  Thomas  McLanahan  died  seised  as  aforesaid,  and  that  tlio 
said  Catherine,  Alexander  and  Amelia,  since  the  death  of  their 
father,  the  said  Thomas,  continually  have  been,  and  still  are,  in  full 
life  and  seised  in  their  demesnes  as  of  fee  in  the  remaining  part  of 
said  purpart,  of  which  the  said  Thomas  died  seised,  and  that  no 
writ  hath  issued  against  either  of  the  said  tenants  or  children  and 
heirs  of  said  Thomas,  nor  against  the  said  James  Burns,  Isaac 
Moorehead,  Richard  Ilayden,  Martin  Funk,  Samuel  Hughes  and 
James  Gettys,  or  either  of  them,  and  this,  they  the  said  John  and 
Michael,  are  ready  to  verify,  and,  therefore,  inasmuch  as  no  writ 
hath  issued  out  of  the  Common  Pleas  of  said  county,  against  them, 
the  said  Catherine,  Alexander  and  Amelia,  and  against  James 
Burns,  Isaac  Moorehead,  Barnard  McGee,  Richard  Ilayden,  Martin 
Funk,  and  James  Gettys,  to  the  said  sheriff  of  the  county  directed, 
they,  the  said  John  and  Michael,  pray  judgment,  if  they  ought  to 
be  compelled  to  answer  the  said  writ  returned." 

The  plaintiff  demurred  to  this  plea,  and  after  argument  the 
Court  of  Common  Pleas  made  the  following  order : — 

"  The  court  do  adjudge  that  the  defendants  ought  not  now  to  be 
compelled  to  answer,  and  order  that  notice  of  this  action  be  given 
to  the  several  terre-tenants  named  by  defendants  (in  their  plea  of 
abatement),  returnable  at  next  term,  and  that  the  person  so  named 
after  service  be  added  as  terre-tenants.  And  the  defendants  now 
of  record  agree  not  to  take  any  advantage  of  the  mode  of  bringing 
in  the  other  terre-tenants.  The  death  of  Isaac  Moorehead  and 
Richard  Ilayden,  terre-tenants  (in  plea)  suggested  ;  exit  notice  to 
terre-tenants.  28th  July  1826,  served  personally  upon  James 
Burns,  Martin  Funk,  Samuel  Hughes,  Catherine  McLanahan, 
Amelia  McLanahan  and  Alexander  McLanahan,  nihil  as  to  Bernard 
McGee  and  James  Gettys.  2d  September  182t>,  rule  on  terre- 
tenants  to  plead  in  six  weeks  or  judgment.  July  24th  1827,  John 
McLanahan  and  Michael  McLanahan  plead  payment  with  leave, 
&c.,  and  set  off.  2d  August  1827  ;  exit  notice  to  Henry  Funk, 
served  by  copy.  Washington  appears  for  Samuel  Hughes,  Jacob 
Ickus,  Bernard  McGee  and  Martin  Funk,  17th  September  1S27, 
rule  on  Henry  Funk,  Samuel  Hughes,  Jacob  Ickus  and  Martin 
Funk,  to  plead  in  thirty  days  or  judgment.  18th  September  1>27. 
copy  served.  Washington  appears  for  James  Burns.  James  Gettys 
and  Henry  Funk,  and  for  all  the  terre-tenants  for  whom  he  has 
appeared.  Pleas  payment  with  leave  to  give  the  special  matter  in 
evidence.  Plaintiff  replies  non  sole  it,  &c.,  issue,  &c. 


102  SUPREME  COURT  [Cham&enburg 

[McLanahan  v,  McLanahan.] 

The  will  of  John  McLanahan,  Sr.,  having  been  read,  the  defend- 
ants offered  in  evidence  the  following  receipt,  it  having  been  first 
admitted  that  John  Smith  was  married  to  Jane  McLanahan,  one  of 
the  heirs  of  Martin  McLanahan,  and  that  the  receipt  was  dated 
after  the  death  of  Martha  McLanahan  : 

'•  Received,  October  the  llth,  A.  D.  1819,  of  John  McLanahan, 
executor  of  John  McLanahan,  Sr.,  deceased,  one  hundred  dollars, 
it  being  in  part  coming  to  John  and  Garret  Smith,  heirs  of  Martha 
McLanahan,  deceased,  one  hundred  dollars,  received  per  me. 

"  JOHN  SMITH." 

Which  evidence  was  objected  to,  and  overruled  by  the  court,  and 
exception  taken  by  the  defendants. 

On  behalf  of  the  tcrre-tcnants  it  was  proved  that  John  Flanagan, 
administrator  of  Thomas  McLanahan,  who  was  one  of  the  executors 
of  John  McLanahan,  deceased,  in  March  1818,  petitioned  the 
Orphans'  Court  for  an  order  to  sell  the  real  estate  of  Thomas 
McLanahan,  his  intestate,  for  the  payment  of  debts,  to  wit,  two 
hundred  and  ninety  acres  of  land,  being  the  same  estate  which  he 
took  under  his  father's  will,  upon  which  petition  the  court  granted 
an  order  for  the  sale  of  ninety-eight  acres,  part  thereof,  which  in 
May  1818,  in  pursuance  of  that  authority,  the  administrator  sold 
in  parcels,  to  wit:  nine  acres  to  Bernard  McGee,  for  $613.27; 
twenty-one  acres  and  eighty-seven  perches  to  Richard  Hayden,  for 
$1508.26  ;  thirty-five  acres  and  ninety-eight  perches  to  John  Oelig, 
for  $241*2. <S7  ;  fourteen  acres  and  one  hundred  and  thirty-seven 
perches  to  Martin  Funk,  for  $1180.50;  thirteen  acres  and  one 
hundred  and  thirty-two  perches  to  James  Gettys,  for  $1629.96 ; 
amounting,  in  the  whole,  to  $6831.87,  which  sales  were  confirmed 
by  the  court. 

Subsequently,  to  wit,  in  1821,  two  judgments  were  obtained  against 
Thomas  McLanahan's  estate,  upon  simple  contract  debts,  in  favor 
of  John  II.  Hughes  and  Samuel  Hughes,  Esq.,  and  one  judgment  in 
favor  of  Riddle  for  the  use  of  Calhoun,  upon  which  a  fi.  fa.  issued. 
The  balance  of  Thomas  McLanahan's  estate,  to  wit,  the  two  hun- 
dred acres,  was  levied,  and  it  was  afterwards  sold  by  the  sheriff,  on 
the  12th  April  1824,  to  John  II.  Hughes,  for  his  father,  Samuel 
Hughes,  Esq.,  for  $3500,  to  whom  the  sheriff  made  a  deed  upon 
his  executing  receipts  for  so  much  of  his  judgments.  It  was 
admitted  that  Samuel  Hughes  and  Jacob  Ickus  present  the  same 
interest.  It  was  also  in  evidence  that  John  McLanahan,  Sr.,  at  the 
time  of  his  death  was  possessed  of  a  large  stock  of  cattle,  and  con- 
siderable other  personal  estate. 

1.  The  counsel  of  the  plaintiff  requests  the  court  to  instruct  the 
jury,  that  the  sales  of  the  land  of  Thomas  McLanahan,  one  of  the 
devisees,  under  the  decree  of  the  Orphans'  Court,  does  not  discharge 


Oct.  1834.]  OF  PENNSYLVANIA.  103 

[McLanahan  ».  McLanahan.] 

the  said  land  from  the  lien  of  the  legacy,  devised  to  Martha,  the 
widow. 

2.  That  the  sale  made  by  Archibald  Flemming,  Esq.,  as  sheriff, 
to  John  II.  Hughes,  for  Samuel,  and  the  receipt  by  Samuel  Hughes 
of  the  whole  of  the  purchase-money  on  his  judgments,  given  in  evi- 
dence to  the  jury,  was  a  sale,  under  the  circumstances  of  the  case, 
subject  to  the  lien  of  the  legacy  of  Martha,  and  that  the  lien  of  the 
same  is  not  discharged  by  said  sale. 

3.  That  if  said  lands,  sold  by  the  decree  of  Orphans'  Court,  or  at 
sheriff  sale  aforesaid,  if  discharged  at  all  from  said  lien,  cannot  in 
law  be  discharged,  under  the  circumstances  in  evidence,  from  more 
than  one-third  of  the  same,  being  Thomas  McLanahan 's  proportion 
of  the  same. 

The  counsel  of  Samuel  Hughes,  Bernard  McGee,  James  Gettys, 
James  Burns,  Martin  Funk,  and  Henry  Funk,  respectfully  requests 
the  court  to  instruct  the  jury  :  1.  That  the  legacy  given  to  Martha 
McLanahan,  by  the  will  of  John  McLanahan,  deceased,  is  not 
charged  by  the  will  on  the  lands  of  the  said  John  McLanahan,  and 
that  plaintiffs  cannot  recover  in  this  action  against  the  terre-tenants. 
2.  That  the  sale  of  the  lands  of  Thomas  McLanahan  to  Samuel 
Hughes  by  the  sheriff,  by  virtue  of  an  execution  against  the  admin- 
istrator of  Thomas  McLanahan,  divested  the  lien  of  the  legacy,  and 
that  the  plaintiff,  therefore,  is  not  entitled  to  recover  from  the  said 
Samuel  Hughes  in  this  cause. 

3.  That  the   sales  made  by  John  Flanagan,   administrator  of 
Thomas  McLanahan,  of  the  lands  of  said  Thomas,  under  a  decree 
of  the  Orphans'  Court,  divested  the  lien  of  the  legacy,  and  that  the 
plaintiff  is  not  entitled  to  recover   in   this  cause  against  Bernard 
McGee,  James   Gettvs,  James   Burns,   Martin   Funk   and   Henry 
Funk. 

4.  If  the  jury  believe  that  John  McLanahan,  deceased,  left  suf- 
ficient personal  estate  for  the  payment  of  his  debts  and  legacies, 
and  that  his  executors  are  fully  able  to  pay  the  legacy  claimed  in 
this  suit,  their  verdict  ought  then  to  be  in  favor  of  the  terre-tenants. 

5.  That  the  plaintiff  cannot  recover  in  this  form  of  action. 

The  court  delivered  the  following  charge  to  the  jury,  on  the 
points  submitted. 

In  answer  to  the  first  point  on  part  'of  the  tenants  in  possession, 
the  court  say,  the  testator,  John  McLanahan,  devised  his  whole 
estate,  both  real  and  personal,  to  his  three  sons,  John,  Thomas  and 
Michael ;  lie  appointed  them  his  executors,  and  ordered  them  to 
discharge  the  legacies  in  his  will.  If  they  paid  them  at  all,  it 
must  be  out  of  the  fund  bestowed  on  them  in  the  will.  There 
are  no  words  in  the  will  which  in  express  terms  make  the  legacy 
to  his  wife  a  lien  on  the  land  devised,  but  it  was  to  be  paid  out 
of  the  fund  placed  in  their  hands,  and  by  necessary  implication 


104  SUPREME  COURT  \_Chambersburg 

[McLanahan  r.  McLanahan.] 

become  a  charge  on  the  land  in  the  hands  of  the  devisees  and  ex- 
ecutors, as  a  part  of  that  fund.  There  is  no  evidence  before  us  to 
show  precisely  what  the  amount  of  the  personal  estate  of  the  de- 
ceased was.  The  executors  have  paid  out,  on  this  legacy,  150?., 
and  on  the  other  legacies  in  the  will  1100?.  It  is  submitted  to  you 
to  determine  whether  these  two  sums,  amounting  to  1250?.  amount 
to  as  much  as  the  personal  estate  of  the  deceased  amounted  to  at 
his  death.  It  is  even  admitted  that  these  funds,  arising  from  the 
personal  estate,  ought  first  to  have  been  applied  to  the  legacy  now  in 
suit;  yet  I  am  of  the  opinion  that  the  application  of  those  funds  to 
the  payment  of  the  other  legacies,  which  are  expressly  charged  on 
the  land,  could  not  avail  the  terre-tenants,  who  claim  under  the 
sale  made  by  virtue  of  the  decree  of  the  Orphans'  Court.  They 
come  in  under  Thomas  McLanahan.  The  payment  of  the  legacies 
which  have  been  paid,  went  in  discharge  of  the  lien  on  his  land, 
and  they  must  take  it  subject  to  this  devise  as  it  stood  at  the  time 
of  the  sale.  If  a  suit  had  been  brought  by  the  present  plaintiff  for 
the  legacy  at  the  time  of  the  sale  made  by  the  administrator  of 
Thomas  McLanahan,  most  clearly  his  representatives  could  not 
have  set  up  as  a  defence  that  the  funds  which  ought  to  have  been 
applied  to  the  payment  of  this  legacy  which  is  charged  on  this 
land,  had  been  misapplied  by  appropriating  them  to  the  payment 
of  other  legacies  in  the  same  will,  which  were  also  a  charge  upon 
the  land.  If  he  cannot  set  up  such  a  defence,  the  purchasers  at  the 
sale  under  the  decree  of  the  Orphans'  Court  cannot  set  it  up.  They 
come  in  under  him,  and  must  hold  the  estate  under  the  will  as  he 
held  it.  There  is  no  proof  here  that  any  part  of  the  personal  assets 
of  the  deceased  were  wasted  by  the  executors.  The  court  are,  there- 
fore, not  called  upon  to  say  what  the  effect  of  such  devastavit  would 
be ;  I  am  therefore  of  opinion  that  the  legacy  given  to  Martha  Mc- 
Lanahan by  the  will  of  John  McLanahan,  deceased,  is  so  charged 
on  the  lands  devised  to  his  three  sons,  that  the  plaintiff  can  recover 
against  the  terre-tenants  who  have  been  brought  on  the  record  in 
this  suit,  and  who  defend  their  interest  in  it. 

First  point  on  part  of  plaintiff,  and  third  on  part  of  terrc-ten- 
ants. 

That  the  sale  made  by  John  Flanagan,  administrator  of  Thomas 
McLanahan,  deceased,  by  virtue  of  the  decree  of  the  Orphans' 
Court  for  that  purpose,  did  not  divest  the  lien  of  the  legacy  be- 
queathed to  Martha  McLanahan,  in  her  husband's  last  will,  and 
made  a  charge  on  his  land  by  his  will,  and  that  the  plaintiff  in  this 
case  may  recover  a  judgment  which  may  be  levied  on  the  said  lands, 
and  in  possession  of  the  several  tenants  in  possession  who  have  been 
brought  on  the  record,  and  who  have  defended  their  interests  in 
this  suit. 

Second  point  on  part  of  plaintiff,  and  second  on  part  of  terre- 
tenants. 


Oct.  1829.]  OF  PENNSYLVANIA.  105 

[McLanahan  ».  McLanahan.] 

It  appears  in  evidence  that  a  judgment  was  obtained  at  the  .suit 
of  James  Riddle,  for  the  use  of  James  arid  Andrew  Calhoun,  against 
John  Flanagan,  administrator  of  Thomas  McLanahan,  deceased,  on 
•which  a  fi.  fa.  was  issued,  and  two  hundred  acres  of  land  levied  on, 
which  were  afterwards  sold  on  an  alias  venditiorii  exponas,  return- 
able to  April  term  1824,  to  John  II.  Hughes,  for  §3500,  who,  it  is 
admitted,  purchased  for  his  father,  Samuel  Hughes.  At  that  time 
a  suit  was  pending  for  this  legacy,  brought  to  August  term  1822, 
which  was  non-suited  or  abated  at  August  term  1824,  that  the 
money  arising  from  the  -sale  was  all  settled  by  the  sheriff  with 
Samuel  Hughes  on  two  judgments,  one  at  the  suit  of  Foreman, 
Lane  &  Co.,  against  the  administrator  of  Thomas  McLanahan,  de- 
ceased, and  marked  on  the  record  for  the  use  of  Ilolker  Hughes; 
the  other  at  the  suit  of  Samuel  Hughes,  against  the  same  defend- 
ant, by  the  sheriff  taking  Samuel  Hughes'  receipt  for  $1184.14  on 
the  first,  and  for  $2084. 4(J  on  the  second.  Taking  into  view  all  these 
circumstances  and  all  the  other  circumstances  in  the  cause,  if  there  be 
any  others  which  have  any  bearing  on  this  point,  if  the  jury  should 
even  be  of  opinion  that  Samuel  Hughes  was  the  owner  of  the  two 
judgments  on  which  the  money  arising  from  the  sale  was  paid,  yet 
the  court  is  of  opinion  that  the  sale  made  by  Archibald  Flemming, 
sheriff,  on  the  process  given  in  evidence  to  John  II.  Hughes,  and 
the  receipts  by  Samuel  Hughes,  of  the  whole  of  the  purchase-money, 
and  the  judgment  given  in  evidence  was  not  a  sale  subject  to  the 
lien  of  the  legacy  of  Martha  McLanahan,  and  that  therefore  the  lien 
of  the  said  legacy  was  discharged  by  the  said  sale  so  far  as  related 
to  the  land  so  sold,  unless  it  was  expressly  understood  and  agreed 
at  the  time  of  the  sale  that  Hughes  purchased  it  subject  to  the  lien 
of  the  said  legacy.  The  circumstance  of  there  being  a  suit  brought 
for  the  legacy,  or  other  notice  of  the  existence  of  it  to  Hughes  at 
the  time  of  the  sale,  would  not  subject  the  land  in  his  hands  to  the 
payment  of  it. 

As  soon  as  the  sheriff's  deed  was  acknowledged,  the  title  to  the 
land  vested  in  Hughes,  discharged  of  the  encumbrance  of  this  leg- 
acy, and  the  sheriff  becomes  liable  to  pay  to  the  plaintiff  the  pro- 
portion of  the  legacy  which  the  land  sold  bears  to  the  whole  amount 
of  the  land  devised  by  John  McLanahan,  deceased,  to  his  three 
sons,  charged  with  it.  The  only  evidence  before  us  of  the  value 
of  the  land  devised,  is  that  which  is  furnished  by  the  sale  of  that 
part,  which,  by  the  division  made  among  the  three  sons  of  the  tes- 
tator, fell  to  the  share  of  Thomas  McLanahan,  deceased.  The 
amount  of  the  sales  made  by  the  administrator  is  $6831.87 ;  the 
amount  of  the  sale  made  by  the  sheriff  is  $3/H"H\  in  all  ?10.;?-'H.S7  ; 
the  lands  were  to  be  equally  divided  among  them.  AVe  may  sup- 
pose, therefore,  that  the  other  two  shares  were  equal  in  value  to  the 
share  of  Thomas.  The  whole  land  charged  with  the  legacy  would 


106  SUPREME  COURT  [C'hambersburg 

[McLanahan  v.  McLanahan.] 

be  worth  about  331,000.  The  amount  of  the  sheriff's  sale  being 
$3500,  the  proportion  that  this  sum  bears  to  the  whole  amount  oif 
the  value  of  the  land  charged,  if  that  value  is  to  be  ascertained  by 
supposing  the  other  two  shares  to  be  worth  the  same  sum  that  was 
raised  by  the  sale  of  Thomas'  and  no  more,  is  as  7  is  to  62,  so  that 
if  the  jury  should  be  of  opinion  that  the  value  of  the  land  should  be 
estimated  according  to  this  rate,  7-62  or  about  one-ninth  of  the  leg- 
acy, would  be  the  proportion  which  ought  to  have  been  paid  by  the 
sheriff  out  of  the  proceeds  of  the  sales  made  by  him  of  the  land  to 
Samuel  Hughes.  That  proportion  of  the  legacy  which  was  charge- 
able in  equity  on  the  land  sold  by  the  sheriff,  is  to  be  credited  in 
this  suit.  The  plaintiff  is  to  look  to  the  sheriff  for  that  part  and 
for  the  residue  thereof,  the  remaining  lands,  devised  in  the  hands 
of  the  executors  of  John  McLanahan  and  Michael  McLanahan,  and 
the  several  tenants  in  possession,  who  are  made  parties  to  this  cause, 
are  responsible  in  this  suit. 

Third  point  on  part  of  plaintiff.  The  court  have,  already,  in 
substance,  answered  this  point.  The  lands  are  not,  in  the  opinion 
of  the  court,  discharged  of  the  lien  of  the  legacy,  by  the  sale  made 
under  the  order  of  the  Orphans'  Court.  The  lands  in  the  hands 
of  the  executors  of  John  McLanahan,  deceased,  and  of  the  tenants 
in  possession  made  parties  to  this  suit,  are  discharged  from  no  more 
of  said  legacy  than  the  proportion  thereof  which  ought,  as  the  court 
has  said,  to  have  been  paid  out  of  the  sheriff's  sale. 

Fifth  point  on  part  of  terre-tenants.  That  the  action  can  be 
maintained  in  its  present  form,  and  the  plaintiff  may  recover  in  it. 

Fourth  point  on  part  of  terre-tenants.  If  John  and  Michael 
McLanahan,  the  surviving  executors,  received  sufficient  of  the  per- 
sonal estate  of  the  testator,  to  pay  the  debts  and  funeral  expenses 
of  the  testator,  the  other  legacies,  and  the  legacy  in  question  in 
full,  that  would  make  them  liable  to  the  present  plaintiff  to  pay  the 
whole  amount  of  Martha's  legacy.  But  that  circumstance  would 
not,  however  well  able  the  executors  may  be  to  pay  the  legacy,  ex- 
onerate the  land  devised  to  Thomas  McLanahan  in  the  hands 
of  the  tenants  in  possession  made  parties  to  this  suit,  until  the  leg- 
acy was  actually  paid,  nor  would  it  be  a  sufficient  reason  for  render- 
ing a  verdict  in  their  favor  in  this  suit. 

The  jury  returned  the  following  verdict:  "That  they  find  for  the 
defendants,  Samuel  Hughes  and  Jacob  Ickus;  and  that  they  find  for 
the  plaintiff  §2047.08  against  the  other  defendants;"  upon  which, 
judgment  dc  tcrris  was  entered. 

In  this  court  the  following  errors  were  assigned,  on  behalf  of 
John  and  Michael  McLanahan:  1st.  The  court  erred  in  saying  that 
the  lands  bought  by  Samuel  Hughes,  at  sheriff's  sale,  were  dis- 
charged of  the  legacy.  2d.  In  saying  that  if  they  were  discharged, 
that  only  one-ninth  of  the  legacy  was  discharged.  In  saying  that 


Oct.  1829.]  OF  PENNSYLVANIA.  107 

[McLanahan  v.  McLanahan.] 

tne  action  could  be  supported  under  the  pleadings.     4th.  In  reject- 
ing the  evidence  mentioned  in  the  bill  of  exceptions. 

And  the  following  errors  were  assigned  on  behalf  of  all  the  terre- 
tenarits  against  whom  judgment  was  rendered  :  1st.  The  court  erred 
in  saying  that  the  legacy  given  to  Martha  McLanahan  by  the  will 
of  John  McLanahan,  deceased,  was  charged  on  the  lands  devised 
to  his  sons  by  his  said  will.  2d.  In  saying  that  the  sale  made  by  the 
administrator  of  Thomas  McLanahan,  in  pursuance  of  the  decree 
of  the  Orphans'  Court,  did  not  discharge  the  lands  so  sold  from  the 
lien  of  the  legacy.  3d.  In  saying  that  one-ninth  part  of  the  legacy 
would  be  the  proportion  which  ought  to  have  been  paid  by  the  sher- 
iff', out  of  the  proceeds  of  the  sale  made  by  him  of  the  lands  to 
Samuel  Hughes.  4th.  In  saying  that  the  receipt  by  the  executors 
of  John  McLanahan  of  sufficient  personal  estate,  for  the  payment 
of  all  debts,  funeral  expenses  and  legacies  in  full,  together  with 
their  present  ability  to  pay  the  legacy,  would  not  be  a  sufficient  rea- 
son for  rendering  a  verdict  in  favor  of  the  terre-tenants.  5th.  In 
saying  that  the  action  could  be  maintained  in  its  present  form. 

Dunlop,  for  the  plaintiffs  in  error. — There  are  three  distinct 
interests  represented  in  this  cause.  First,  the  plaintiff,  who  is  inter- 
ested to  preserve  the  security  or  fund  out  of  which  the  legacy  to  his 
intestate  was  payable,  and  therefore,  to  maintain  the  position,  that 
neither  the  lands  sold  by  the  sheriff,  nor  those  sold  by  the  order  of 
the  Orphans'  Court,  are  thereby  discharged  from  the  lien  of  the 
legacy.  Second,  the  defendants,  who  in  this  particular  agree  with 
the  plaintiff,  for  the  purpose  of  producing  this  result,  that  all  the 
lands  which  descended  from  John  McLanahan,  Sen.,  charged  with 
the  payment  of  legacies,  in  whose  hands  soever  they  may  be,  shall 
justly  contribute  their  proportion  to  the  payment  of  those  legacies, 
and  that  thereby  the  defendants,  the  surviving  executors,  shall  not 
be  called  upon  to  pay  more  than  their  part  in  proportion  to  the  lands 
which  they  hold.  And  third,  the  terre-tenants,  whose  interest  it  is, 
to  hold  the  lands  they  purchased  from  the  sheriff  and  administrator, 
discharged  of  all  lien  or  encumbrance  of  those  legacies,  and  to  turn 
those  legatees  to  the  sheriff'  for  their  money  out  of  the  proceeds  of 
sale. 

Upon  the  first  error  assigned  he  proceeded  to  say,  that  he  would 
first  endeavor  to  satisfy  the  court  that  the  point  had  not  arisen 
directly,  nor  had  it  been  decided  by  this  court,  in  any  ease  which 
had  been  reported  in  our  books  ;  that  although  an  intimation  had 
been  given  in  the  case  of.  Barnet  c.  Washabaugh,  16  S.  &  K.  410, 
yet,  that  was  but  the  opinion  of  the  judge  who  delivered  the  opinion 
of  the  court,  for  the  point  did  not  arise  in  that  ease :  and  that 
the  authority  of  the  case  of  Nichols  r.  Postlethwaite.  -  Hall,  lol, 
was  not  entitled  to  consideration,  in  consequence  of  the  imperfect 


108  SUPREME  COURT  [Chambersburg 

[McLunahan  r.  McLanahan.] 

and  erroneous  report  of  the  facts.  And  secondly,  that  there  was 
neither  legal  principle,  nor  public  policy,  upon  which  such  a  deci- 
sion could  be  predicated  ;  that  it  would  violate  the  spirit  and  letter 
of  the  Act  of  Assembly,  which  authorizes  the  sale  of  lands  for  the 
payment  of  debts,  and  provides  that  "the  purchaser  shall  hold  the 
land  as  fully  and  amply  as  the  debtor  had  and  held  the  same,"  to 
sanction,  by  judicial  decision,  the  doctrine  that  the  sheriff  could  sell 
and  convey  a  greater  estate  than  the  debtor  had,  or  could  himself 
sell  and  convey,  and  was  about  to  cite  authority  on  this  point, 
when  the  chief  justice  said  that  this  point  had  been  discussed  at 
their  last  sitting  in  Sunbury,  and  the  court  considered  the  doc- 
trine as  settled  against  the  plaintiff  in  error;  and  that,  in  all  cases 
of  judicial  sales,  the  estate  sold  passes  to  the  purchaser  discharged 
of  liens. 

Second  error.  If  the  legatees  are  obliged  to  come  in  and  claim 
their  legacies  out  of  the  proceeds  of  the  sale  by  the  sheriff  or  ad- 
ministrator, they  must  claim  the  whole  amount ;  they  come  in  as 
judgments,  as  is  said  by  Duncan,  J.,  in  the  case  of  Gause  v.  Wiley, 
4  S.  &  R.  522.  There  was,  therefore,  error  in  the  opinion  of  the 
court,  that  only  one-ninth  of  the  legacy  was  discharged. 

Third  error.  The  terre-tenants  should  have  been  made  defend- 
ants, by  being  included  in  the  writ,  and  so  summoned  by  the 
sheriff.  This  is  an  action  on  the  case  for  a  legacy,  and  the  terre- 
tenants  are  brought  in  after  suit  brought  by  a  notice,  and  judgment 
rendered  against  them,  although  there  is  no  claim  made  against 
them  in  the  declaration  of  the  plaintiff. 

Fourth  error.  In  a  court  of  law,  a  payment  to  the  heir  of  Martha 
McLanahan  would  not  be  a  good  one  ;  but  this  is  an  equitable  action, 
and  the  court  ought  to  have  received  the  evidence  mentioned  in  the 
bill  of  exceptions  as  an  equitable  payment.  Smith  represented  the 
heir  of  Martha  McLanahan,  the  plaintiff's  intestate,  and  a  part  of 
the  legacy  to  her,  under  the  will  of  her  husband,  was  paid  to  him  ; 
the  legacy  was  due ;  there  were  no  debts  due  by  the  estate  of  the 
intestate,  and  he  was  therefore  entitled  to  it,  in  right  of  his  wife, 
and  received  it,  and  the  money  could  not,  therefore,  be  recovered 
back  from  him  ;  the  evidence  ought,  therefore,  to  have  been  received 
to  protect  John  McLanahan  from  a  loss  of  the  amount :  Share  i\ 
Anderson,  7  S.  &  R.  02. 

\Va%Jiinijt<m,  for  the  terrc-tcnants. — 1st.  Martha  McLanahan 
occupies  a  different  relation  to  the  testator  from  the  other  legatees, 
whose  legacies  are  plainly  charged  upon  the  land  :  the  legacy  to  her 
is  not  included  among  those,  which  by  the  will  arc  expressly  charged 
upon  the  land.  The  inference,  therefore,  from  this  distinction  made 
by  the  testator,  is  manifest  that  his  intention  was,  the  one  should 
bo  a  charge  upon  the  land  devised,  but  that  to  Martha  should  not : 


Oct.  1829.]  OF  PENNSYLVANIA.  109 

[McLanahan  v.  McLanahan.] 

and  the  intention  of  a  testator  to  charge  his  lands  with  the  payment 
of  legacies  must  be  clear  and  manifest :  Lupton  v.  Lupton,  '2  Johns. 
Oh.  614 ;  Keeling  v.  Brown,  5  Ves.  Jr.  359. 

4th.  Although  lands  are  expressly  charged  with  the  payment  of 
legacies,  yet  if  there  is  sufficient  personal  estate  to  pay  them  and 
the  debts,  they  must  be  paid  out  of  that  fund :  Commonwealth  for 
use  of  Beelman  v.  Shelby,  13  S.  &  R.  348 

Chambers,  for  the  defendant  in  error,  in  consequence  of  the 
intimation  from  the  court,  declined  arguing  the  point,  whether  the 
sheriff's  sale  discharged  the  lien  of  the  legacy,  but  contended  that 
the  sale  by  the  administrator  did  not. 

An  administrator  derives  his  authority  to  sell  land  of  his  intestate 
from  the  Act  of  Assembly,  which  also  points  out  all  the  duties, 
which,  in  the  exercise  of  this  authority,  he  is  bound  to  perform  : 
that  act  does  not  require  one  who  is  entitled  to  a  legacy  payable 
out  of  the  estate  of  John  McLanahan,  to  claim  that  legacy  out  of 
the  proceeds  of  the  sale  of  the  real  estate  of  Thomas  McLanahan  ; 
nor  is  the  administrator  authorized  to  pay  such  a  claim,  although 
the  act  docs  expressly  authorize  him  to  pay  judgments.  The  estate 
is  the  interest  which  a  tenant  hath  in  lands,  &c.  It  was  the  estate 
of  Thomas  McLanahan  which  was  sold  by  his  administrator,  and 
the  proceeds  of  that  sale  was  not  the  fund  out  of  which  this  legacy 
was  payable ;  nor  is  there  any  form  of  action  known  to  the  law  by 
which  the  payment  of  it  could  have  been  enforced  against  the  ad- 
ministrator of  Thomas  McLanahan :  Gause  r.  Wiley,  4  S.  &  R. 
522.  The  circumstance  of  there  being  no  mode  by  which  it  could 
be  ascertained  what  proportion  of  the  legacy  the  administrator  was 
bound  to  pay,  ought  to  be  a  sufficient  answer  to  the  proposition  to 
adopt  this  novel  rule. 

This  is  a  proceeding  in  the  nature  of  a  bill  in  equity,  and  conve- 
nient for  the  purpose  of  attaining  the  object ;  no  harm  can  result  to 
terre-tenants  from  this  form  of  action,  and  it  is  not  the  one  pointed 
out  in  the  case  of  Brown  v.  Furer,  4  S.  &  11.  213.  But  all  objec- 
tions on  this  point  are  removed  by  the  agreement  of  the  terre-ten- 
ants to  appear  and  make  defence. 

The  evidence  rejected  by  the  court  must  have  been  offered  either 
in  the  character  of  a  set-off  or  an  equitable  defence. 

It  could  not  have  been  admitted  as  a  set-off,  because  there  was 
no  mutuality  of  debt  between  'the  parties  ;  nor  as  an  equitable  de- 
fence, because  it  could  not  be  ascertained  to  what  amount  such 
evidence  would  be  admissible :  if  there  were  no  debts  of  Martha 
McLanahan,  there  were  costs  of  administration,  which  is  sufficient 
to  show  the  illegality  of  a  payment  to  an  heir,  instead  of  a  personal 
representative  ;  John  Smith's  distributive  share  of  Martha  McLana- 
han's  estate  could  not  be  ascertained  in  this  suit,  and  therefore  the 


110  SUPREME  COURT  [Chambersburg 

[McLanahan  r.  McLanahan.] 

inconvenience  and  uncertainty  of  admitting  the  evidence  at  all, 
under  circumstances  where  there  did  not  exist  an  absolute  neces- 
sity for  it. 

The  same  reason  which  rejects  the  evidence  of  the  set-off  of  a 
debt,  due  by  an  intestate  against  a  claim  by  the  administrator,  re- 
jects this  evidence,  because  at  the  time  the  evidence  is  offered,  there 
is  no  means  of  knowing  what  portion  of  such  set-off  is  payable. 
Wolfersberger  v.  Bucher,  10  S.  &  It.  10. 

Suppose  that  advancements  had  been  made  by  Martha  McLana- 
han, in  her  lifetime,  to  her  heirs,  is  the  court  to  stop  and  try  to 
what  extent  those  advancements  had  been  made,  in  order  to  know 
how  far  the  set-off  was  admissible  ?  If  this  is  the  law,  it  would 
apply  to  a  case  where  the  trustee  of  an  insolvent-debtor  brings  suit 
to  recover  a  debt  due  to  the  insolvent,  the  debtor  might  set-off  a 
claim  due  to  him  by  a  creditor  of  the  insolvent,  who  would  be  en- 
titled to  a  distributive  share  of  the  insolvent's  property,  when  it 
would  be  divided  by  the  trustee. 

The  legacy  is  a  charge  upon  the  land:  Ilassanclever  v.  Tucker,  2 
Binn.  525 ;  Witman  v.  Norton,  6  Id.  395.  Although  the  legacies 
to  his  daughters  are  expressly  charged  upon  the  land  devised,  this 
does  not  affect  the  legal  implication  that  the  legacy  to  his  wife, 
Martha,  was  also  a  charge.  1  Hop.  on  Leg.  448-452  ;  it  cannot 
be  presumed  that  it  was  the  intention  of  the  testator  to  make  the 
legacy  to  his  wife,  who  was  the  primary  object  of  his  bounty  less 
secure  than  those  to  his  other  legatees. 

If  both  funds,  real  and  personal  estate,  are  charged  with  the  pay- 
ment of  this  legacy,  the  legatee  has  a  right  to  pursue  either  or  both 
until  he  gets  his  money.  The  personal  estate  of  an  intestate  must 
first  be  applied  to  the  payment  of  his  debts;  but  a  creditor  is  never 
restrained  in  his  pursuit  of  either  real  or  personal  estate,  whichever 
he  may  elect,  until  he  collects  his  debt. 

Washington,  in  reply. — The  cases  in  2  Binn.  525,  and  6  Id.  395, 
cited  for  the  defendant  in  error,  strengthen  the  position  which  is 
taken  for  the  terre-tenants,  for  in  either  of  the  cases  the  intention 
of  the  testator  to  charge  his  land  with  the  legacies  is  manifest, 
which  is  not  the  case  with  John  McLanahan. 

Dunlop,  in  reply  for  the  plaintiffs  in  error. — If  there  was  error 
in  not  making  the  terrc-tenants  parties  to  the  action  by  including 
them  in  the  body  of  the  writ,  their  appearance  and  defence  does  not 
cure  the  error. 

It  does  not  appear,  in  this  case,  that  there  were  any  advancements 
by  Martha  McLanahan  to  her  heirs,  or  that  there  were  any  debts, 
these  difficulties  are  therefore  imaginary. 


Oct.  1829.]  OF  PENNSYLVANIA.  Ill 

[McLanahan  v.  McLanahan.] 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — We  think  it  clear  that  the  legacy  to  the  plaintiff's 
intestate,  is  a  lien  on  the  real  estate  devised  to  the  sons.  It  is  a  prin- 
ciple of  English  jurisprudence,  as  well  as  the  unquestioned  law  of 
Pennsylvania,  that  when  the  real  estate  is  blended  by  the  testator 
with  the  personal,  the  land  is  charged  with  the  payment  of  legacies. 
And  the  reason  assigned  is,  that  the  whole  will  may  take  effect,  and 
all  the  legacies  be  paid,  which  is  justly  supposed  to  be  the  intention 
of  the  testator,  when  both  funds  are  put  into  one :  Kennedy  v. 
Cousmaher,  1  Ves.  Jr.  444;  llassanclever  v.  Tucker,  2  Binn.  531; 
Witman  v.  Norton,  6  Id.  396  ;  Nichols  v.  Postlethwaite,  2  Dall. 
131.  And  this  effect  is  produced  by  implication,  and  it  is  not 
effected  by  an  express  charge  in  favor  of  other  legatees,  as  has  been 
ruled  in  Webb  v.  Webb,  1  Roper  on  Legacies  433,  a  case  equally 
strong  with  the  present,  where,  in  answer  to  a  similar  objection,  the 
court  said,  "The  testator  might  use  express  words  of  charge  in  one 
part  of  his  will,  and  create  a  charge  by  implication  in  another." 
The  testator,  in  the  phraseology  used,  and  in  charging  the  lands 
devised,  with  the  payment  of  the  legacies  hereafter  mentioned,  does 
not  so  unequivocally  express  a  contrary  intention,  as  to  curtail,  or 
in  any  way  interfere  with  the  implication  arising  from  blending  the 
real  and  personal  fund  into  one. 

When  a  legacy  is  charged  on  land,  the  sheriff's  vendee  takes  the 
land  discharged  from  the  lien  of  a  legacy.  And  this  is  the  principle 
of  the  case  of  Barnet  v.  Washebaugh,  16  S.  &  R.  410,  decided  after 
great  deliberation,  and  since  repeatedly  recognised.  And  a  pur- 
chaser of  land,  sold  by  order  of  the  Orphans'  Court,  is  in  the  same 
situation  as  a  sheriff's  vendee.  The  21st  section  of  the  Act  of  the 
19th  April  1794,  enacts  that  no  lands,  tenements  and  hereditaments, 
sold  by  order  of  the  Orphans'  Court,  shall  be  liable  in  the  hands  of 
the  purchaser,  for  the  debts  of  the  intestate.  The  lands  went  into 
the  possession  of  the  devisee,  charged  with  the  payment  of  the 
legacies,  and  was  therefore  a  debt  of  the  intestate  as  tenant  of  the 
land. 

Judicial  sales,  as  appears  from  the  whole  current  of  the  recent 
decisions,  divest  all  liens  whether  general  or  specific,  and  the  excep- 
tions to  the  rule,  are  grounded  on  special  and  peculiar  circum- 
stances. The  land  sells  better  from  passing  into  the  possession  of  the 
purchaser  unencumbered,  and  it  is  of  no  consequence  to  a  creditor 
who  sells  it,  provided  it  be  sold  fairly,  and  the  proceeds  faithfully 
applied.  It  is  the  duty  of  the  court  to  see  that  no  loss  results  from 
improper  practices,  or  the  want  of  adequate  security,  in  a  sale  under 
their  order,  and  particularly  subject  to  their  control.  The  proceeds 
of  the  sale  must  in  the  first  instance,  be  applied  to  the  payment  of 
liens,  which  existed  in  the  lifetime  of  the  intestate,  according  to 
their  respective  priority.  By  the  sale,  the  money  is  substituted  for 


112  SUPREME  COURT  [Pittsburgh 

[McLanahan  r.  McLanahan.] 

the  land,  to  bo  distributed  by  the  administrator  among  the  creditors, 
in  the  order  of  the  respective  claims  against  the  real  fund,  which  by 
process  of  law  has  been  converted  into  personalty  for  that  purpose. 
A  uniform  rule  applied  to  all  judicial  sales  avoids  confusion,  and  a 
distinction  such  as  has  been  adopted  by  the  Common  Pleas,  is,  we 
think,  contrary  to  the  spirit  of  all  the  cases  which  have  been 
recently  decided. 

An  objection  has  been  taken  to  the  form  of  the  suit ;  the  action 
is  brought  against  the  executor,  with  notice  to  the  terre-tenant,  who 
appears  and  pleads,  without  objection  to  the  manner  he  was  made  a 
party.  After  this  we  are  unwilling  to  reverse  the  cause  on  that 
ground  alone. 

The  most  approved  form,  as  appears  from  the  precedents,  is  to 
bring  the  suit  against  the  executors  and  the  terre-tenants,  who  are 
generally  most  interested  in  the  cause  ;  for  it  is  on  the  failure  of 
the  personal  funds  that  resort  is  had  to  real  estate:  Jefferson  v. 
Morton  et.  al.,  '2  Saund.  7.  The  action  may  be  brought  either 
against  the  tenant  of  the  land  generally,  without  naming  them,  or 
against  them  by  name ;  but  the  former  is  the  best  form,  and  in 
England  is  constantly  used  ;  for  if  the  plaintiff  undertake  to  name 
them  he  must  name  them  all,  and  if  he  does  riot,  those  who  are  not 
named  may  plead  in  abatement :  Chahoon  v.  Holleribach,  10  S.  & 
11.  432 ;  IJarresford  r.  Cole,  2  Sauud.  7,  note  4.  When  suit  is 
brought  against  the  terre-tenants  generally,  the  sheriff  returns  spe- 
cially the  tenants  of  the  land  who  come  in,  and  either  plead  gener- 
ally to  the  action,  or  specially,  that  another  person,  naming  him, 
was  and  yet  is  tenant  of  the  land,  and  that  no  process  has  been  yet 
issued  against  him,  &c.,  and  pray  judgment  of  the  court,  if  they 
ought  to  be  compelled  to  answer  to  the  said  writ,  in  form  aforesaid 
returned.  And  the  reason  of  this  plea  seems  to  be  because  every 
tenant  of  the  land  is  entitled  to  have  contribution,  that  is,  all  the 
lands  bound  in  the  hands  of  the  several  purchasers,  or  owners 
thereof,  must  be  equally  charged ;  therefore,  unless  all  the  tenants 
be  warned,  the  others  are  not  obliged  to  answer.  And  if  the  ten- 
ant does  not  take  advantage  of  the  omission  in  the  first  instance 
by  a  plea  of  this  sort,  which  he  may  do,  notwithstanding  the  sheriff's 
return,  it  would  seem  he  loses  the  benefit  of  contribution,  or  of 
relief  by  audit  a  nwrrla,  in  case  execution  is  taken  out  against  his 
land  alone:  Mitchell  v.  Croft,  Cro.  Jac.  506;  Clark  v.  Ilardmiller, 
Mun.  />2o.  In  England  he  cannot  plead  it  after  a  plea  in  bar. 
Eyers  v.  Cowley,  Sir  William  Jones  341) ;  2  Saund.  7,  note  10. 
On  the  plea  that  all  the  terre-tenants  have  not  been  summoned,  for 
the  having  speedier  justice,  the  plaintiff  may  pray  a  writ  to  sum- 
mon the  person  alleged  to  be  terre-tenant,  which  is  granted  to  him 
by  the  court ;  and  by  this  means,  when  summoned  by  the  sheriff, 


Oct.  1829.]  OF  PENNSYLVANIA.  113 

[McLanahan  v.  McLanahan.] 

he  is  made  a  party  in  the  same  manner  as  if  he  had  been  summoned, 
or  returned  by  the  sheriff  as  terre-tenant  of  the  land. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

Referred  to,  1  W.  418 ;  4  W.  398 ;  7  W.  478  ;  3  Barr  159  ;  11  C.  187. 
Commented  on,  8  W.  297  ;  7  Barr  243  ;  9  Id.  132;  10  Wr.  175. 
Approved  and  followed,  9  W.  &  S.  106. 

Followed,  4  R.  446,  447 ;  12  Wr.  123 :  19  Smith  176  ;  2  Norris  353,  s.  c.  4 
W.  N.  C.  268. 
See,  24  February  1834,  §  59  P.  L.  84.  and  17  Smith  38,  and  cases  there  cited. 


1  P.  &  W.— 8 


114  SUPREME  COURT  [Cham&enburg 


Laughlin  against  Peebles. 

IN    ERROR. 

A  party  who  has  recovered  a  judgment  in  the  Court  of  Common  Fleas, 
and  received  the  amount  of  it  from  the  defendant,  will  not  be  permitted  to 
reverse  that  judgment  on  a  writ  of  error. 

Qntere.  If  a  plaintiff  in  error  withdraws  his  writ,  and  has  an  entry  made 
upon  the  docket,  "  writ  of  error  withdrawn,"  whether  it  is  not  a  retraxit, 
and  will  not  bar  another  writ. 

THIS  was  a  writ  of  error  to  the  Common  Pleas  of  Cumberland 
county.  The  plaintiff  in  error  was  the  plaintiff  below. 

To  October  term  18^5,  a  writ  of  error  issued  at  the  instance  of 
the  plaintiff  to  remove  this  same  judgment ;  the  record  was  not 
returned,  but  on«  the  12th  of  October  1826,  this  entry  was  made 
upon  the  docket  of  the  Supreme  Court,  "  Writ  of  error  withdrawn." 
Another  writ  of  error  issued  to  October  term  1829,  upon  which  the 
record  was  returned,  and  several  errors  assigned,  which  were  now 
before  the  court. 

Alexander,  for  the  defendant  in  error,  moved  to  quash  the  writ 
on  two  grounds  : 

1.  That  the  withdrawal  of  the  writ  of  error,  on  the  12th  Octo- 
ber 1826,  was  a  retraxit,  and  is  a  complete  bar  to  the  prosecution  of 
another  writ  to  remove  the  same  judgment:    Beecher  v.  Sherly. 
Cro.  Jac.  211. 

2.  That  an  execution  issued  in  the  court  below,  at  the  instance 
of  the  plaintiff,  upon  his  judgment,  and  that  he  has  since  received 
the  amount  from  the  defendant,  and  read  a  deposition  made  at  the 
bar,  to  show  that  the  plaintiff  had  received  the  benefit  of  his  judg- 
ment, and  also  exhibited  certain  receipts,  is  further  evidence  of  the 
same  fact. 

Williamson,  for  the  plaintiff  in  error. — The  withdrawal  of  a  writ 
of  error  by  the  attorney  of  a  party  is  not  a  retraxit,  which  can  only 
be  done  by  the  personal  appearance  of  the  party  in  court :  2  Sell. 
Prac.  338 ;  Bcecher's  Case,  8  Coke  58.  An  attorney  of  a  party 
has  no  such  power :  Jac.  Law  Die.  523. 

Carothers,  on  the  same  side. — A  retraxit  operates  in  the  nature 
of  a  release,  and  the  powers  of  an  attorney  are  not  so  comprehen- 
sive as  to  enable  him  to  release  the  rights  of  his  client. 

There  were  several  judgments  against  the  same  defendant  in 
favor  of  the  same  plaintiff,  and  the  receipts  are  not  particularly 
applicable  to  the  judgment  which  is  removed  by  this  writ  of  error. 

Alexander,  in  reply. — It  does  not  appear  by  whose  direction  the 
entry  of  "writ  of  error  withdrawn"  was  made,  whether  by  the 


Oct.  1829.]  OF  PENNSYLVANIA.  115 

[Laughlin  v.  Peebles.] 

party  or  his  attorney ;  and  while  it  remains  upon  the  record  of  a 
court,  competent  to  make  the  entry,  even  if  erroneous,  it  is  conclu- 
sive. 

The  court  being  satisfied  by  the  evidence  exhibited  that  the 
plaintiff  had  received  the  benefit  of  his  judgment,  on  this  ground 
alone,  puashed  the  writ  of  error. 

Distinguished,  1  C.  220 


Gallatin  against  Cornman  et  al. 

IN    ERROR. 

Where  the  defendant,  under  the  Act  of  the  20th  of  March  1S10,  regulating 
arbitrations,  appeals  from  the  award  of  arbitrators,  and  a  general  verdict  passes 
for  him,  he  is  entitled  to  the  costs  which  follow  a  final  judgment;  such  case  is 
not  within  the  provisions  of  that  act,  as  to  costs,  and  they  are  given  by  the 
law  as  it  existed  before  the  passage  of  that  act. 

Where  a  transcript  of  the  judgment  of  a  justice  of  the  peace  is  filed  in 
the  oflice  of  the  prothonotary  of  the  Court  of  Common  Pleas,  and  the  judg- 
ment is  opened,  and  the  defendant  let  into  a  defence  in  that  court,  and  a 
verdict  is  rendered  for  the  defendant,  the  One  Hundred  Dollar  Act,  regulat- 
ing the  payment  of  costs  on  appeal  from  the  judgment  of  a  justice,  does  not 
apply. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Perry  county. 
This  case,  the  facts  of  which  are   fully  stated  by  Judge  Smith, 
who  delivered  the  opinion  of  the  court,  was  argued  by 

Creiqh,  for  the  plaintiff  in  error,  who  cited  Dearth  et  al.  v. 
Laughlin,  16  S.  &  11.  200  ;  Landis  v.  Shaeffer,  4  Id.  106 ;  Flick 
et  al.  v.  Boucher,  10  Id.  373;  Purdon  20,  and  Lentz  v.  Stroh,  0 
S.  &  R.  40.  And  by 

Alexander,  contra,  who  referred  to  Flick  et  al.  v.  Boucher,  16  S. 
&  11.  373. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — A  transcript  of  the  judgment  rendered  by  Justice 
White,  in  the  above  stated  action,  was  filed  in  the  Court  of  Common 
Pleas  of  Perry  county,  and  on  a  fieri  facias  issued  thereon,  a  levy 
was  made  on  the  real  estate  of  John  Cornman,  one  of  the  defend- 
ants. At  the  instance  of  John  Cornman  this  fi.  fa.  was  afterwards 
quashed,  the  judgment  opened,  and  upon  the  issue  on  the  plea  of 
payment,  the  sum  due  was  to  be  ascertained,  the  lien  of  the  judg- 
ment to  remain  in  the  mean  time,  and  the  costs  to  abide  the  final 
event  of  the  suit.  The  cause  was  then  arbitrated,  and  a  report 
made  for  the  plaintiff  for  $44. 2o,  with  costs,  from  which  the  de- 


116  SUPREME  COURT  [Chambertburg 

[Gallatin  v.  Cornman.] 

fondants  entered  an  appeal.  At  the  trial,  on  the  7th  of  April  1829, 
a  verdict  was  returned  by  the  jury  for  the  defendants,  upon  which 
a  motion  was  made  to  enter  a  judgment  without  costs,  which  the 
court  overruled,  and  entered  judgment  generally  for  the  defendants. 
Four  errors  have  been  assigned  by  the  plaintiff  on  these  proceedings. 

1st.  That  the  court  erred  in  refusing  to  enter  judgment  with 
costs,  since  the  appeal. 

2d.  That  the  court  erred  in  allowing  the  defendants  the  costs 
paid  by  them,  at  the  time  of  appeal,  and  which  embraced  the  costs 
on  the  original  suit  before  the  justice. 

Gd.  That  the  court  erred  in  allowing  the  defendants  (who  were 
the  appellants),  the  fees  of  their  subpoenas,  and  serving  them,  their 
witnesses'  fees,  and  daily  pay  since  the  appeal,  also  the  jury  fee  paid 
to  the  sheriff  for  the  verdict. 

4th.  That  the  execution  issued  for  costs  against  the  plaintiff, 
when  no  costs  were  due  to  defendants. 

The  errors  may  all  be  considered  together.  It  is  to  be  observed 
in  this  case,  that  neither  party  appealed  from  the  judgment  of  the 
justice;  but  after  the  transcript  of  his  judgment  had  been  filed  in 
the  office  of  the  prothonotary  of  the  Court  of  Common  Pleas,  the 
judgment  was,  by  consent  of  the  parties,  opened,  and  the  cause, 
after  issue  had  been  joined,  was  put  to  arbitrators,  and  when  they 
had  decided,  the  defendants,  by  an  appeal,  carried  it  back  to  the 
Court  of  Common  Pleas;  it  was  there  tried  in  the  usual  form  by  a 
jury,  and  a  verdict  and  judgment  rendered  for  the  defendants.  It  is 
then  a  case  to  which  the  provisions  of  the  One  Hundred  Dollar  Act, 
as  to  costs  on  an  appeal  from  a  justice's  judgment,  are  not  strictly 
applicable.  If,  however,  the  provisions  of  that  act  can  be  consid- 
ered applicable,  the  defendants  would,  beyond  all  doubt,  be  enti- 
tled to  costs  on  the  verdict  and  judgment,  according  to  the  decision 
of  this  court  in  Flick  et  al.  v.  Boucher,  1C  S.  &  R.  373.  By 
the  One  Hundred  Dollar  Act,  it  is  declared,  that  on  the  reversal 
or  abatement  of  a  judgment,  the  defendant,  when  he  appeals,  shall 
recover  costs,  if,  on  the  trial,  he  has  produced  no  other  evidence 
than  he  exhibited  before  the  justice;  here,  no  other  or  new  evi- 
dence was  produced,  and  therefore,  under  this  act,  the  defendants 
would  be  entitled  to  costs.  But  I  take  the  proceedings  to  have  been 
strictly  under  the  Act  of  the  20th  March  1810,  regulating  arbi- 
trations, and  how  the  costs  of  an  appeal  from  the  award  of  arbitra- 
tors arc  to  be  paid.  The  14th  section  of  that  act,  is  the  one  •which 
has  some  bearing  on  the  case  before  us ;  it  provides  that  if  the  de- 
fendant (as  here),  be  the  appellant,  the  condition  of  the  recogni- 
sance shall  be,  that  if  the  plaintiff,  in  the  event  of  the  suit,  shall 
obtain  a  judgment  for  a  sum  equal  to,  or  greater,  or  a  judg- 
ment as,  or  more  favorable,  than  the  report  of  arbitrators,  the 
said  defendant  shall  pay  all  costs  that  may  accrue  in  consequence 
of  the  appeal,  together  with  the  sum  or  value  of  the  thing  awarded 


Oct.  1829.]  OF  PENNSYLVANIA.  117 

[Gallutin  v.  Cornman.J 

by  the  arbitrators,  with  one  dollar  per  day,  for  each  arid  every  day 
that  shall  be  lost  by  the  plaintiff,  in  attending  to  such  appeal.  This 
section  does  not  provide  for  costs,  where  the  plaintiff  shall  not 
obtain  such  a  judgment  as  is  mentioned  in  this  section.  In  the 
case  before  us,  the  plaintiff  had  no  cause  of  action,  and  did  not 
recover  anything ;  nor  does  that  section  of  the  act  provide,  that  the 
defendant  shall  recover  costs,  in  case  he  is  successful  on  his  appeal ; 
such  a  case,  it  would  seem  to  me,  is  not  provided  for  by  the  act.  I 
would  then,  in  such  case  say,  that  the  law  as  it  stood  before  the 
One  Hundred  Dollar  Act,  and  the  Arbitration  Act,  is  to  govern  ; 
and  therefore,  that  the  costs  in  this  case  should  follow  the  final 
judgment,  which  was  for  the  defendants  generally. 

The  judgment  of  the  court  below  is  therefore  to  be  affirmed. 

Judgment  affirmed. 

Referred  to,  10  Barr  182. 
Followed,  8  W.  &  S.  380,  381. 


Mulliken  against  Aughinbaugh  et  al. 

IN   ERROR. 

A  debt  due  to  one  who  is  an  applicant  for  the  insolvent  laws  of  Mary- 
land, and  for  whom  a  provisional  trustee  has  been  there  appointed,  is  not 
subject  to  a  foreign  attachment  in  Pennsylvania,  it  being  in  yrvmio  Icyis. 

A  foreign  attachment  will  lie  in  Pennsylvania,  at  the  suit  of  a  citizen  of 
another  state. 

Qucere.  Whether  a  foreign  attachment  abates  by  the  death  of  the  defend- 
ant, after  interlocutory  and  before  final  judgment. 

Tins  was  a  writ  of  error  to  the  Common  Pleas  of  Cumberland 
county,  to  remove  the  record  of  a  judgment  entered  upon  the 
following  statement  of  facts,  which,  it  was  agreed,  should  be  con- 
sidered in  the  nature  of  a  special  verdict. 

On  the  20th  of  May  1818,  Aughinbaugh  and  Clippinger,  resident 
citizens  of  the  state  of  Pennsylvania,  were  indebted  to  Fahnestoek 
and  Ciaullaghcr,  for  the  use  of  Henry  Fahnestoek,  in  the  sum  of 
$4278.80,  which  was  then  payable  to  the  said  Fahnestoek,  on  the 
29th  May  18 10.  On  the  4th  day  of  September  1818,  Henry  Fahne- 
stoek, being  then  a  resident  of  the  city  of  Baltimore,  in  the  state 
of  Maryland,  in  pursuance  of  a  law  of  that  state,  made  application 
for  the  benefit  of  the  insolvent  laws,  whereupon  certain  proceedings 
were  had  and  done,  certified  copies  of  which  are  now  exhibited, 
and  agreed  to  be  considered  as  a  part  of  this  special  verdict 
(prout  same),  of  all  which  the  plaintiff  had  notice.  On  the  17th 
of  December  1818,  the  said  Henry  Fahnestoek,  being  still  a  non- 
resident of  the  state  of  Pennsylvania,  and  then  residing  in  Balti- 


118  SUPREME  COURT  \Chambersbwg 

fMulliken  r.  Aughinbaugh.] 

more,  as  aforesaid,  a  writ  of  foreign  attachment  was  issued  out  of 
the  Court  of  Common  Pleas  of  Cumberland  county,  at  the  suit  of 
the  said  Benjamin  II.  Mulliken,  also  a  citizen  of  the  city  of  Balti- 
more, against  the  said  Henry  Fahnestock,  by  virtue  whereof  the 
sheriff  of  said  county  attached  the  said  debt,  owing  by  the  said 
Aughinbaugh  and  Clippinger  to  the  said  Henry  Fahnestock,  and  so 
returned  the  same  to  the  court  aforesaid,  on  the  return-day  thereof; 
whereupon,  at  the  third  term,  to  wit,  the  30th  of  August  1811.1,  on 
motion  to  the  said  court,  judgment  was  entered  in  the  said  suit  for 
the  plaintiff.  Afterwards,  and  to  the  next  term,  to  wit,  November 
term,  1819,  No.  170,  a,  writ  of  inquiry  of  damages  issued,  at  the 
suit  of  the  said  Benjamin  II.  Mulliken,  against  the  said  Henry 
Fahnestock,  to  the  sheriff,  who,  by  an  inquest,  held  on  the  29th 
October  1819,  found  that  the  debt  due  by  the  said  Henry  Fahne- 
stock, to  the  said  Benjamin  II.  Mulliken,  and  for  which  the 
said  foreign  attachment  had  issued,  was  $1768.08,  all  which  was 
duly  returned  by  the  said  sheriff"  to  the  said  court,  upon  the  return- 
day  of  his  said  writ  of  inquiry  of  damages.  Whereupon,  on  the 
23d  day  of  December  1819,  and  to  the  next  term,  to  wit,  January 
term,  1820,  No.  102,  a  writ  of  scire  facias  was  issued  at  the  suit 
of  the  said  Benjamin  II.  Mulliken.  against  the  said  Aughinbaugh 
and  Clippinger,  as  garnisliees  of  Henry  Fahnestock,  in  the  afore- 
said foreign  attachment,  which  said  scire  facias  suit  is  the  same 
upon  the  issue  in  which  this  special  verdict  is  found. 

On  the  31st  day  of  July  1819,  and  to  August  term,  1819,  No. 
297,  a  suit  was  brought  in  the  name  of  Henry  Fahnestock  and 
Thomas  Gaullagher,  late  co-partners  in  trade,  under  the  firm  of 
Fahnestock  &  Gaullagher,  for  the  use  of  Henry  Fahnestock,  and 
now  for  the  use  of  Charles  W.  Karthaus,  provisional  trustee  of  the 
said  Henry  Fahnestock,  against  Barnet  Aughinbaugh  and  John 
Clippinger,  co-partners  in  trade,  under  the  firm  of  Aughinbaugh  & 
Clippinger ;  which  suit  was  brought  to  recover  from  the  said 
Aughinbaugh  &  Clippinger,  the  same  debt  of  $4273.80,  which  had 
been  attached  as  aforesaid  at  the  suit  of  the  said  Benjamin  II. 
Mulliken.  In  this  suit,  among  other  things,  the  said  Aughinbaugh 
&  Clippinger  set  up  as  a  defence  and  gave  in  evidence  the  said  writ 
of  foreign  attachment,  at  the  suit  of  the  said  Benjamin  II.  Mulli- 
ken, and  other  writs  of  foreign  attachment  at  the  suit  of  other 
plaintiffs.  Whereupon,  on  the  19th  November  1828,  the  following 
agreement  or  stipulation  was  made  and  entered  upon  the  record  of 
the  said  writ,  to  wit :  "  It  is  stipulated  by  the  plaintiff  by  their 
counsel,  that  in  the  event  of  a  recovery  in  this  case,  it  shall  be 
considered  in  favor  of  the  persons  legally  entitled  to  have  the 
money,  and  the  same  to  remain  in  court  until  it  be  determined 
whether  the  plaintiff  or  attaching-creditors  be  entitled  to  receive  it. 
Mr.  Carothcr*  and  Mr.  Watts  appear  for  Adam  Konigmacher, 
Benjamin  II.  Mulliken,  Jos.  and  J.  Wilkins,  and  E.  F.  Hallowell, 


Oct.  1829.]  OF  PENNSYLVANIA.  119 

[Mulliken  v.  Aughinbaugh.] 

the  attaching-creditors."  "  To  this  stipulation  the  defendants  gave 
no  consent."  And  afterwards,  to  wit,  on  the  22d  January  1829, 
the  following  agreement  was  made,  arid  entered  on  the  record : — 

"It  is  agreed  between  Mr.  Metzyer,  counsel  for  the  plaintiffs, 
and  Messrs.  Carothers  and  Watts,  attorneys  for  the  attachment- 
creditors,  that  the  verdict  when  given  in  this  case  is  in  no  wise  to 
affect  the  attaching  creditors  mentioned  in  a  former  stipulation,  but 
that  their  rights  shall  be  held  as  if  no  such  verdict  had  been  given." 
This  agreement  was  made  in  open  court  upon  the  trial  of  the  cause, 
when  a  verdict  was  then  rendered  for  the  plaintiff,  Charles  W.  Kar- 
thaus,  for  the  original  debt  of  $4273.80,  without  interest. 

It  is  further  agreed  that  Henry  Fahnestock  died  on  the  day 
of  ,  A.  D.  1825,  and  that  letters  of  administration  were  granted 
on  his  estate  to  the  said  Charles  W.  Karthaus,  in  the  city  of  Balti- 
more, on  the  27th  day  of  August  1829. 

Upon  the  foregoing  facts  the  question  is,  who  is  entitled  to  the 
money  in  the  hands  of  Aughinbaugh  &  Clippinger  ?  If  the  court 
should  be  of  opinion,  that  the  plaintiff  in  this  issue  is  entitled  to 
recover,  then  judgment  to  be  entered  for  the  plaintiff  in  this  suit, 
and  for  the  plaintiffs  in  the  other  suits,  which  by  agreement  abide 
the  event  of  this  case,  and  in  that  event  the  verdict  and  judgment 
at  the  suit  of  Fahnestock  &,  Gaullagher,  for  the  use  of  Charles  W. 
Karthaus,  No.  297,  August  term  1819,  to  stand  as  a  security  for 
the  use  of  the  said  Benjamin  11.  Mullikin,  and  the  other  plaintiffs 
in  foreign  attachments,  to  wit,  A.  Konigmacher,  E.  F.  Ilallowell, 
and  Jos.  &  J.  Wilkins,  according  to  the  agreement  made  on  the 
17th  November  1828.  and  entered  on  the  record  of  the  said  suit,  as 
before  recited. 

But  if  the  court  should  be  of  opinion,  that  the  plaintiffs  in  said 
foreign  attachments  are  not  entitled  to  recover,  then  judgment  to  be 
entered  for  the  defendants,  and  the  said  suit  for  the  use  of  the  said 
Charles  W.  Karthaus,  No.  297,  of  August  term  1819,  to  be  dis- 
charged from  any  encumbrance  created  by  the  said  writs  of  foreign 
attachment,  or  by  the  before  recited  agreements  of  the  17th  Novem- 
ber 1828,  and  22d  July  1829. 

It  is  further  agreed  that  Benjamin  II.  Mulliken  and  Jos.  &  J. 
Wilkins  were  citizens  of  the  city  of  Baltimore,  in  the  state  of  Mary- 
land, and  that  Adam  Konigmacher  was  a  citizen  of  Pennsylvania 
at  the  time  when  said  foreign  attachments  were  issued,  to  wit,  on 
the  17th  December  1818. 

In  the  decision  of  the  within  special  verdict,  the  facts  embraced 
therein  are  to  be  passed  upon  and  decided,  and  to  have  in  every 
respect  the  same  operation  in  law  as  if  they  had  been  presented 
duly  for  decision  by  pleadings  or  otherwise. 

All  the  records  and  papers  mentioned  in  the  foregoing  special 
verdict,  are  hereby  agreed  to  be  considered  part  thereof. 


120  SUPREME  COURT  [Chamtertburg 

[Mullikcn  v.  Aughinbauph.] 

The  record  of  the  application  of  Henry  Fahnestock  for  the  benefit 
of  the  insolvent  laws,  in  the  city  of  Baltimore,  exhibited  the  follow- 
ing facts  : — 

That  in  pursuance  of  "An  act  relating  to  insolvent  debtors  in 
the  city  and  county  of  Baltimore,"  Henry  Fahnestock,  on  the  4th 
September  1818,  applied  to  the  Honorable  Walter  Dorsey,  chief 
judge  of  Baltimore  county,  for  the  benefit  of  the  insolvent  laws, 
and  the  said  judge  referred  his  said  petition,  schedule  and  other 
papers,  to  the  "  Commissioners  of  Insolvent  Debtors,"  and  fixed  the 
first  Saturday  of  March  term  1819  for  the  final  hearing  of  said 
insolvent  before  the  county  court.  The  said  commissioners  ap- 
pointed Charles  W.  Karthaus  provisional  trustee,  to  take  charge 
of  the  effects  of  the  said  Henry  Fahnestock,  in  pursuance  of  the 
said  act,  who  entered  into  a  bond  in  the  penalty  of  §100,000,  con- 
ditioned for  the  faithful  performance  of  the  duties. 

It  did  not  appear  that  any  further  proceeding  was  had  in  pursu- 
ance of  said  application,  or  that  Henry  Fahnestock  ever  afterwards 
appeared  to  prosecute  his  said  application.  « 

The  court  below  (Reed,  president),  after  delivering  the  following 
opinion,  directed  judgment  to  be  entered  for  the  defendants. 

The  attachment  issued  in  case,  and  the  judgment  at  the  third 
term  was  interlocutory ;  a  writ  of  inquiry  to  assess  the  damages 
issued,  and  was  executed  and  returned ;  but  no  final  judgment  was 
ever  entered  thereon.  But  a  scire  facias  issued  without  such  judg- 
ment. The  omission  to  have  final  judgment  was  not  a  clerical  de- 
fault, but  the  neglect  of  the  party;  for  such  judgment  could  only 
be  entered  on  motion,  and  such  motion  could  alone  proceed  from 
the  plaintiff.  By  his  default,  no  final  judgment  was  entered  when 
the  defendant  died ;  whereupon  the  attachment  abated.  No  writ 
of  scire  facias  can,  therefore,  be  sustained ;  nor  could  it  regularly 
issue.  Upon  this  statement  of  facts,  and  by  the  stipulation  in  the 
special  verdict,  every  objection  may  be  taken  advantage  of,  without 
regard  to  the  pleadings  or  issue. 

Our  opinion  being  decisive  on  this  point,  it  may  not  be  necessary 
to  consider  the  other  aspects  of  the  cause ;  there  are  other  points 
equally  fatal  to  the  plaintiff's  right  to  recover. 

The  transfer  of  the  note  to  the  provisional  trustee,  under  the 
insolvent  laws  of  Maryland,  was  a  pledge  of  the  property  for  the 
use  of  the  creditors  of  Fahnestock,  generally,  although  the  right 
of  property  or  title  remained  in  him,  and  though  the  proceedings 
were  never  consummated  by  the  appointment  of  a  permanent  trus- 
tee; yet  these  proceedings  were  in  force  when  the  attachments  were 
sued,  in  December  1818.  If  at  that  moment  there  was  a  legal  im- 
pediment to  the  issuing  of  an  attachment,  its  subsequent  removal 
would  not  make  good  a  writ  which  had  irnprovidently  issued. 

Though  Karthaus  may  have  had  no  right  to  sue  for  the  money, 


Oct.  1829.]  OF  PENNSYLVANIA.  121 

[Mulliken  v.  Aughinbaugh.] 

he  had  the  possession  of  the  note ;  and  as  the  legal  right  of  Fahne- 
Rtock,  himself,  to  dispose  of  it  in  any  way,  was  suspended  or  taken 
away  by  law — so  the  law  could  not  interpose  to  divest  the  interest 
which  the  general  creditors  had  acquired  in  the  pledge;  until  the 
proceeding,  therefore,  was  discontinued,  the  property  was  locked  up 
in  the  hands  of  the  provisional  trustee. 

Watts  and  Carotfiers,  for  plaintiff  in  error. — In  the  court  below, 
three  objections  were  made  to  the  recovery  of  the  plaintiff.  1st. 
That  a  foreign  attachment  cannot  be  sustained  by  one  who  is  not  a 
citizen  of  Pennsylvania.  2d.  That  the  attachment  abated  by  the 
death  of  Fahnestock.  3d.  That  the  proceedings  under  the  insol- 
vent laws  of  Maryland,  divested  Fahnestock  of  his  interest  in  the 
note,  so  as  to  make  it  not  the  subject  of  a  foreign  attachment. 

On  the  first  point.  Although  the  preamble  to  the  attachment 
laws  recites  an  evil  to  the  citizens  of  our  own  state,  which  it  was 
designed  to  remedy,  yet  such  a  construction  has  been  given  to 
those  laws  as  that  every  man  who  sues  for  his  claim  in  our  courts, 
is  considered  quo  ad  hoc  a  citizen  of  Pennsylvania;  and  such  a 
practice  has  been  accordingly  pursued  as  it  would  be  now  unsafe  to 
overturn :  Milne  v.  Morton,  G  Binn.  533. 

Second.  The  circumstance  of  there  having  been  no  final  judg- 
ment entered  upon  the  return  of  the  writ  of  inquiry  of  damages, 
was  but  a  clerical  omission,  and  one  which  ought  not  to  prejudice 
the  rights  of  the  plaintiffs ;  the  writ  of  scire  facias  against  the  gar- 
nishees  treats  it  as  a  judgment,  and  it  is  not  competent  for  another 
creditor  of  Henry  Fahnestock  to  avail  himself  of  this  omission, 
which  is,  at  all  events,  but  matter  of  form.  But  after  interlocutory 
judgment,  the  death  of  the  defendant  does  not  abate  the  writ  of 
foreign  attachment.  In  the  case  of  Fitch  v.  Ross,  4  S.  &  K.  557, 
the  Supreme  Court  have  decided  that  the  death  of  the  defendant, 
after  final  judgment,  does  not  abate  the  writ,  and  that  the  personal 
representatives  may  be  substituted,  and  may  put  in  bail  to  dissolve 
the  attachment;  and  the  same  reasoning  which  influenced  the  court 
in  that  case  is  perfectly  applicable  to  this.  That  the  declared  ob- 
ject of  the  act  was  to  prevent  non-residents  from -withdrawing  their 
effects  from  the  state,  leaving  their  debts  unpaid;  and  this  object 
would  be  defeated,  if,  after  the  plaintiff  has  run  the  tedious  course 
of  the  law,  and  when  he  is  about  to  reap  the  benefits  of  his  pursuit, 
the  death  of  the  defendant  dissolved  all  ;  and  his  representatives 
would  be  at  liberty  to  withdraw  from  the  state,  the  effects  which 
had  been  condemned  to  pay  the  judgment  against  him. 

Third.  The  foreign  attachment  issued  here,  bound  the  money  in 
the  hands  of  Aughinbaugh  &  Clippinger  which  they  owed  to 
Fahnestock.  By  the  law  of  Maryland,  when  an  application  is 
made  by  an  insolvent  debtor,  and  his  papers  are  referred  to  the 


122  SUPREME  COURT  [Chambersburg 

[Mullikcn  r.  Aughinbaugh.] 

"  Commissioners,"  a  provisional  trustee  is  appointed  to  take  cnarge 
of  the  effects  of  the  applicant  while  the  proceeding  is  pending,  and 
it  is  determined  by  the  judicial  decisions  of  that  state  (2  liar.  & 
J.  24),  that  such  trustee  is  but  a  recipient,  a  care-taker  of  the  pro- 
perty during  the  pendency  of  the  application,  and  until  a  perma- 
nent trustee  is  appointed  he  cannot  sustain  an  action  to  reduce 
the  property  of  the  applicant  into  his  possession.  Karthaus  was, 
therefore,  but  a  care-taker  of  the  evidence  of  the  debt  which  Augh- 
inbaugh &  Clippinger  owed  to  Fahnestock,  and  had  no  right, 
under  any  circumstances,  to  claim  the  money  due  upon  it.  But 
inasmuch  as  it  appears  that  Henry  Fahnestock  never  took  the  ben- 
efit of  the  insolvent  laws,  but  that  what  he  did  do,  was  merely  to 
elude  the  grasp  of  his  creditors,  and  never  can  result  in  any  advan- 
tage to  his  creditors,  it  is  difficult  to  discover  why  it  should  operate 
to  render  ineffectual  a  proceeding  by  one  of  his  creditors,  in  our 
own  state,  by  which  his  debt  would  be  secured. 


,  with  whom  was  Mitter&ud  Penrose,  for  defendant  in  error. 
—  Process  by  attachment  is  not  of  common-law  origin,  but  is  secured 
to  the  people  by  positive  legislative  enactments.  Before  the  pass- 
age of  the  Act  of  1705,  entitled  "An  act  about  attachments,"  the 
effects  of  absenting  debtors  were  not  liable  to  their  debts.  The 
act  referred  to  was  passed  to  remedy  this  evil.  The  preamble 
recites  that  "  whereas  the  laws  of  this  government  have  hitherto 
been  deficient  in  respect  of  attachments,  so  that  the  effects  of  per- 
sons absenting  are  not  equally  liable  with  those  of  persons  dwelling 
upon  the  spot,  to  make  restitution  for  debts  contracted  or  owing 
within  this  province,  to  the  great  injury  of  the  inhabitants  thereof," 
&c.  Hence  the  inference  is  inevitable  that  the  law  was  intended 
for  the  benefit  of  the  people  of  this  state  exclusively.  It  was  so 
considered  by  Washington,  Justice,  in  the  case  of  Fisher  v.  Comegua, 
reported  at  large  in  Sergeant  on  Attachments,  page  44.  In  that  case 
the  learned  judge  refers  to  the  preamble,  to  ascertain  whether  a 
foreign  attachment  would  lie  in  any  case  other  than  debt.  "  The 
mischief,  as  the  preamble  informs  us,  says  he,  was  that  the  effects  of 
absent  persons  were  not  equally  liable  with  those  of  persons  dwell- 
ing on  the  spot,  &c.,  to  the  injury  of  the  inhabitants  of  Pennsylva- 
nia." "  Surely,"  says  the  judge,  "  an  inhabitant  of  Pennsylvania  is 
not  less  injured  by  the  want  of  a  remedy,"  &c.  It  is  no  answer  to 
the  proposition,  that  a  foreign  attachment  was  sustained  in  the 
case  of  Milne  r.  Morton,  0  Binn.  3o3,  although  the  plaintiff  in  the 
attachment  was  a  citizen  of  New  York.  There  the  objection  was 
not  taken.  It  made  no  part  of  the  argument  of  the  case.  The  court 
was  not  required  to  give  an  opinion  on  it.  Nor  are  we  permitted 
to  indulge  in  speculations  on  the  subject.  It  is  a  statutory  remedy, 
and  should  be  construed  strictly.  According  to  the  custom  of  Lon- 


Oct.  1829.]  OF  PENNSYLVANIA.  123 

[Mulliken  v.  Aughinbaugh.] 

don,  the  person  claiming  its  benefit  must  reside  within  the  city. 
Foreign  attachment  is  an  attachment  of  the  goods  of  a  foreigner, 
found  within  a  liberty  or  city,  to  satisfy  some  creditor,  within  such 
city  or  liberty. 

The  attachment  abated  by  the  death  of  Fahnestock.  who  died 
after  interlocutory  but  before  final  judgment.  In  the  case  of  Lud- 
low  v.  Bigham,  4  Dall.  R.  47,  it  was  stated  in  argument  that  the 
defendant's  death,  after  interlocutory  judgment,  destroyed  the  at- 
tachment. It  was  considered  the  settled  law.  Mr.  Dallas,  the  able 
reporter  of  the  case,  adopts  the  argument  as  the  law,  and  goes  so 
far  as  to  ask  in  a  note,  whether  the  death  of  the  defendant,  after 
final  judgment,  does  not  abate  the  writ.  The  case  of  Fitch  v. 
Ross,  4  S.  &  R.  562,  does  not  militate  against  this  principle.  If  the 
opinion,  delivered  by  the  court  in  that  case,  be  carefully  examined, 
it  will  be  found  to  sustain  the  proposition.  In  that  case  the  death 
was  after  final  judgment.  The  court  treated  it  as  a  final  judg- 
ment, and  throughout  the  judge's  opinion,  he  refers  to  that  cir- 
cumstance, it  being  a  final  judgment,  as  justifying  his  opinion, 
that  the  attachment  did  not  abate  or  dissolve  by  the  death  of  the 
defendant. 

This  is  placing  the  law  on  its  proper  basis.  By  the  final  judg- 
ment a  lien  is  created  on  the  defendant's  property.  A  simple  con- 
tract debt  is  changed  into  a  debt  by  judgment  of  law  in  his  life- 
time. Thus  the  law  of  distribution  of  an  intestate's  estate  is  not  im- 
paired. The  plaintiff  in  the  attachment  does  not  obtain  an  undue 
preference.  lie  is  placed  in  the  same  situation  with  a  vigilant 
simple  contract  creditor,  who  brings  his  action  of  debt  and  obtains 
judgment  against  his  debtor  in  his  lifetime.  Far  different  would 
it  be,  if  the  death  of  the  party  did  not  abate  the  attachment,  under 
any  circumstances;  if  death  did  not  abate  it  after  interlocutory 
but  before  final  judgment.  The  writ  can  only  issue  against  an 
absent  debtor.  He  has  no  knowledge  of  the  proceedings.  lie  is 
not  represented  in  court  or  out  of  court.  It  is  an  ex  parte  pro- 
ceeding altogether  and  the  claim  may  be  entirely  groundless.  Yet 
under  these  circumstances  a  judgment  is  obtained — for  the  debt? 
No,  but  to  enable  the  plaintiff  to  issue  his  scire  facias  against  the 
garnishce.  By  the  judgment  no  debt  is  ascertained  and  fixed.  It 
is  merely  interlocutory  :  Serg.  on  Attachments  20 ;  2  Arch.  Prac. 
25,  79.  And  yet,  if  the  position  contended  for  on  the  other  side  be 
correct,  the  plaintiff  in  the  attachment,  having  such  a  judgment, 
would  sweep  away  all  the  assets,  to  the  great  injury  of  the  rest  of 
the  defendant's  creditors. 

It  appears  by  the  proceedings  had,  under  the  insolvent  laws  of 
Maryland,  that  the  note  in  question  was  returned  by  Fahnestock. 
in  the  list  of  his  property,  on  the  4th  September  1818.  On  the 
game  day,  a  provisional  trustee  was  appointed  by  the  coinmis- 


124  SUPREME  COURT  \_Chamberslurg 

[Mulliken  r.  Aughinbaagh.] 

sioncrs  of  insolvent  debtors,  to  take  possession,  for  the  benefit  of  his 
creditors,  of  all  his  property,  estate  and  effects,  books,  papers, 
accounts,  bonds,  notes  and  evidences  of  debt.  The  attachment  did 
not  issue  until  the  17th  day  of  December  1818.  Here  then  was 
such  an  assignment  or  transfer  of  the  insolvent's  effects,  before  the 
issuing  of  the  attachment,  as  to  divest  him  of  his  interest  in  the  note, 
so  as  not  to  make  it  the  subject  of  a  foreign  attachment.  After  the 
transfer,  the  payee  of  the  note  could  not  bring  suit  upon  it,  and  ap- 
propriate it  to  his  own  use.  He  had  pledged  it  for  the  benefit  of 
his  creditors  generally.  They  had  a  direct  interest  in  the  legal  and 
proper  disposition  of  the  money  due  upon  it.  They  had  a  vested 
right,  which  could  not  be  defeated  by  Fahnestock,  his  trustee,  who 
held  in  trust  for  himself  and  other  creditors,  or  by  any  other  per- 
son. And  yet,  if  the  position  taken  by  the  other  side  be  correct, 
we  shall  be  presented  with  the  strange  anomaly  in  the  administra- 
tion of  justice,  that  through  the  instrumentality  of  a  court  of  law, 
money  is  recovered  on  a  note  of  hand,  in  the  custody  of  the  law, 
which  the  owner  himself  could  not  recover ;  that  a  plaintiff  in  a 
foreign  attachment,  on  ex  parte  proceedings,  not  much  favored,  and 
often  leading  to  great  injustice,  could  coerce  the  payment  of  money 
which  had  been  previously  appropriated  to  other  specific  purposes. 
The  law,  however,  is  well  settled  that  the  plaintiff  in  an  attachment 
stands  upon  no  better  footing  than  his  debtor :  United  States  v. 
Yaughan,  3  Binn.  394.  It  is  equally  well  settled,  that  after  the 
transfer  of  a  chose  in  action,  or  anything  else,  it  ceases  to  be  the 
object  of  a  foreign  attachment :  4  Dall.  279  ;  3  Binn.  394  ;  Serg. 
on  Attach.  80,  171,  170,  177,  181. 

The  opinion  of  the  court  was  delivered  by 

GIISSON,  C.  J. — It  is  a  principle,  both  of  British  and  American  ju- 
risprudence, that  personal  property  has  no  locality  in  respect  of  the 
succession,  which  is  alweys  according  to  the  law  of  the  domicile  ;  and 
the  rule  is  extended  by  the  English  courts  even  to  creditors.  But 
in  America,  the  rights  of  creditors  not  owing  allegiance  to  the  coun- 
try of  the  domicile,  are  generally  if  not  universally  determined  by 
the  lex  loci  rei  situ-.  In  the  application  of  the  general  principle 
to  cases  of  foreign  bankruptcy,  the  British  judges,  while  admitting 
the  validity  of  an  involuntary  assignment,  even  as  regards  their 
own  subjects,  have  inconsistently  denied  to  the  bankrupt  his  share 
of  the  benefit  under  the  commission,  by  subjecting  him  to  the 
debts  of  British  creditors,  from  which  the  certificate  purported  to 
be  a  discharge  :  Smith  r.  Buchanan,  1  East  0.  It  surely  would 
be  more  just  to  the  bankrupt,  :is  well  as  beneficial  to  the  British 
creditor,  to  sustain  an  attachment  of  effects  within  the  realm.  The 
American  courts  act  more  consistently,  if  not  more  liberally,  in 
giving  effect  to  the  commission  as  far  as  they  can,  without  interfer- 


Oct.  1829.]  OF  PENNSYLVANIA.  125 

[Mulliken  v.  Aughinbaugh.] 

ing  with  the  claims  of  those  who  were  not  originally  bound  by  it 
on  the  score  of  allegiance ;  and  this  is,  perhaps,  all  that  foreign 
nations  have  a  right  to  require,  as  comity  is  overstrained  when  it 
is  bestowed  at  the  expense  of  justice.  In  Milne  v.  Morcton,  6 
Binn.  361,  Chief  Justice  Tilghman  has  glanced  at  a  distinction 
between  things  that  are  tangible,  and  therefore  susceptible  of  actual 
locality,  and  things  invisible  (consisting  of  debts),  of  which  he  seems 
to  suppose  locality  cannot  be  predicated — the  accuracy  of  which  I 
may,  with  great  respect  for  the  opinions  of  that  learned  and  excel- 
lent judge,  be  permitted  to  question.  The  English  courts  sustain 
the  title  of  assignees  under  a  foreign  commission,  on  principles  of 
courtesy,  not  right ;  while  the  preference  which  we  give  to  the  title 
of  creditors  is  founded,  as  we  conceive,  in  duty  to  prevent  foreign 
interference  with  the  rights  of  our  citizens  or  others  not  owing 
allegiance  to  the  foreign  government,  over  property  which  accident, 
consistently  with  justice  and  the  laws,  has  subjected  to  their  power. 
It  can,  therefore,  make  little  difference  in  principle  whether  the 
existence  of  the  property  be  actual  or  potential,  provided  recourse 
may  be  had  to  it  under  the  process  of  our  courts  ;  or  whether  it  be 
corporeal  or  incorporeal,  provided  it  be  a  subject  of  judicial  cogni- 
sance, as  in  either  case,  it  seems  to  me,  a  creditor  would  be  bound 
by  no  transfer  but  that  of  the  debtor  himself.  But  the  case  at  bar 
is  free  of  difficulty  on  this  or  any  other  head,  the  attaching  creditor 
being  personally  bound  by  the  laws  of  Maryland,  and  consequently 
disabled  from  gaining  an  advantage  inconsistent  with  those  laws  by 
any  proceeding  here.  Whether,  in  the  case  of  a  creditor  not  thus 
bound,  we  should  feel  it  a  duty  to  exercise  a  greater  degree  of 
courtesy  towards  a  sister  state  than  towards  a  country  with  which 
we  are  connected  by  no  political  tie,  is  a  question  about  which  we 
intimate  no  opinion. 

AVhether  the  property  was  bound  by  the  proceedings  in  Mary- 
land when  the  attachment  was  laid,  is  a  distinct  and  material  fact 
which  ought  to  have  been  expressly  stated,  because  not  only  the 
existence  of  a  foreign  law,  but  the  construction  which  is  part  of  it, 
is  determinable,  not  by  the  court,  but  a  jury.  There  is,  however, 
in  the  statement  of  the  case  something  like  an  agreement  that  the 
court  shall  pass  on  matter  of  fact,  which  may  have  been  inserted  to 
remedy  this  very  defect.  The  plaintiff  relies  on  the  opinion  of  the 
Court  of  Appeals,  delivered  by  Chief  Justice  Buchan  in  Brown  t'. 
Brice,  2  Harris  &  Gill  24,  in  which  it  was  ruled  that  the  provisional 
trustee  is  a  mere  recipient  of  the  property  without  power  to  assign 
it,  or  exercise  any  act  of  ownership  in  respect  of  it  but  that  of  a 
bailee.  And  from  this  it  is  evident  that  he  has  but  a  qualified  pro- 
perty. But  of  what  value  to  the  argument  is  it  that  the  ownership 
of  the  insolvent  debtor  was  not  divested  if  the  property  were  //» 
grcmio  hyis .-  And  that  it  was  it  is  impossible  from  the  nature  of 


126  SUPREME  COURT  [Chambenlwg 

[Mulliken  v.  Aughinbaugh.] 

the  case  to  doubt.  The  proceeding  in  cases  of  insolvency  is  a  pro- 
cess of  distribution  among  creditors,  to  accomplish  which  it  is  abso- 
lutely necessary  that  the  law  take  possession  of  the  fund.  To  this 
end  it  is  provided  in  the  "  Act  relating  to  insolvent  debtors  in  the 
city  and  county  of  Baltimore,"  passed  by  the  legislature  of  Mary- 
land in  181(3,  that  the  provisional  trustee  "shall  take  possession 
for  the  benefit  of  the  creditors  of  such  insolvent  debtor  of  all  pro- 
perty, estate  and  effects,  books,  papers,  accounts,  bonds,  notes  and 
evidences  of  debt."  Surely  against  such  possession  the  courts  of 
Maryland  would  not  permit  a  creditor  to  gain  a  preference  by  exe- 
cution or  otherwise ;  and  if  such  preference  could  not  be  gained 
there,  a  creditor  bound  by  the  laws  of  that  state  could  use  the  pro- 
cess of  the  courts  with  no  better  success  here. 

The  property  was  therefore  not  subject  to  attachment  by  an 
inhabitant  of  Maryland ;  not,  however,  because  a  foreign  attach- 
ment may  not  issue  at  the  suit  of  a  non-resident  (for  that  has  never 
before  been  doubted),  but  because  it  was  previously  attached  by  the 
laws  of  Maryland,  by  which  the  plaintiff  is  bound.  This  decision 
of  the  preceding  points  relieves  us  from  deciding  whether  the  attach- 
ment abated  by  the  death  of  the  defendant  between  interlocutory 
judgment  and  the  execution  of  a  writ  of  inquiry  of  damages ;  a 
nice  and  critical  question,  which  we  would  not  determine  without 
more  consideration  than  we  have  had  time  to  bestow  on  it. 

Judgment  affirmed. 

Referred  to,  5  W.  &  S.  120 ;  2  Barr  85  ;  5  II.  94  ;  3  Gr.  134. 
Commented  on,  2  W.  &  S.  131. 
Dictum  corrected,  infra,  388. 

See  3  May  1*55,  2  1  V.  L.  415,  extended  23  April  1857,  \  2  P.  L.  298,  and 
Philson  c.  Barnes  14  Wr.  234. 


Baily  ayaiiist  Herkes  et  al. 

IN    ERROR. 

Parol  evidence  of  the  declarations  of  a  testator  at  the  time  the  will  was 
written,  may  lx»  received  in  evidence,  to  HUpport  a  presumption  that  the 
legacy  was  redeemed  by  the  testator  in  his  lifetime. 

WRIT  of  error  to  the  Common  Pleas  of  Cumberland  county. 

This  was  an  action  of  debt  brought  by  the  plaintiff  against  the 
defendants  to  recover  a  legacy  under  the  will  of  Elizabeth  Snyder, 
deceased,  which  was  bequeathed  in  the  following  words:  "1  give 
and  bequeath  to  John  Baily,  the  boy  that  was  living  with  me,  and 


Oct.  1829.]  OF  PENNSYLVANIA.  127 

[Trego  v.  Herkes.] 

my  deceased  husband  in  his  lifetime,  one  hundred  dollars."  The 
will  was  dated  21st  October  1824,  and  proved  immediately  after 
the  death  of  the  testatrix,  on  the  23d  February  1826,  arid  read  to 
the  jury. 

The  defendants  then  offered  to  prove,  by  the  person  who  wrote 
the  will,  that  while  writing  it,  the  testatrix  said  she  wanted  to  pay 
John  Baily  $100,  according  to  the  request  of  her  late  husband,  and 
asked  the  witness  if  it  were  inserted  as  a  legacy  in  the  will,  if  she 
could  still  pay  it  in  her  lifetime ;  and  he  advised  her  to  take  a 
receipt  for  it,  or  pay  it  in  the  presence  of  a  witness,  and  that  before 
the  death  of  said  Elizabeth,  she  did  in  fact  pay  the  $100  to  John 
Baily. 

Which  evidence  was  objected  to  by  the  plaintiff's  counsel,  on  the 
ground  that  the  bequest  in  the  will  is  general,  and  cannot  be  qual- 
ified by  parol  evidence,  so  as  to  show  any  particular  intention  of 
the  testatrix. 

The  objection  was  overruled,  and  exception  taken  by  the 
plaintiff. 

The  following  is  the  substance  of  the  testimony  then  given  :  That 
David  Snyder,  the  late  husband  of  Elizabeth  Snyder,  the  testatrix, 
made  a  will  on  the  18th  July  1818,  by  which  he  bequeathed  nearly 
his  whole  estate  to  his  wife,  and  that  before  his  death,  which  hap- 
pened the  16th  February  1819,  he  said  to  his  wife  that  he  had 
intended  to  bequeath  to  John  Baily  $100,  but  at  the  time  of  writ- 
ing his  will  he  had  forgotten  it,  and  then  enjoined  it  upon  her  to 
give  John  Baily  $100  out  of  his  estate;  that  in  October  1824,  she 
communicated  this  injunction  of  her  husband  to  the  person  who  was 
at  that  time  writing  her  will,  and  her  intention  to  obey  it ;  and 
after  the  will  Avas  written,  she  told  the  witness  that  if  Baily  should 
stand  in  need  of  the  money  before  her  death,  she  would  pay  it  to 
him.  The  will  remained  in  the  possession  of  the  testatrix,  and 
about  a  year  after  it  was  written,  she  sent  for  John  Baily,  and  said 
to  him,  "that  her  husband  had  enjoined  her  to  give  him  $100  out 
of  the  estate,  and  she  had  waited  a  good  while  for  a  favorable  oppor- 
tunity, that  it  might  go  to  a  good  use."  She  then  went  to  the 
same  desk  in  which  her  will  waa,  and  got  $100  in  notes,  and  gave 
them  to  Baily.  Her  will  remained  in  her  possession,  unaltered 
until  her  death,  which  happened  two  or  three  months  afterwards. 

The  court  (Reed,  president)  delivered  the  following  charge  to 
the  jury:  There  are  two  points  involved  in  this  case,  one  of  law 
and  the  other  of  fact.  It  is  contended  that  Elizabeth  Snyder,  hav- 
ing bequeathed  $100  to  John  Baily,  in  her  last  will  and  testament, 
and  that  will  having  been  duly  proved  after  her  death,  that  "  the 
words  of  that  will  cannot  be  supplied,  contradicted  or  explained  by 
parol  evidence,  and  that  therefore  the  testimony  of  John  Bear  ought 
to  have  no  influence  upon  the  minds  of  the  jury  in  making  up  their 
verdict."  The  legal  position  thus  taken  by  plaintiff's  counsel  is 


128  SUPREME  COURT  \_Chambersburg 

[Trego  r.  Ilcrkes.] 

correct  enough,  but  the  consequence  does  not  follow  which  the 
plaintiff  contends  for.  The  will  of  Elizabeth  Snyder  is  plain  and 
unambiguous,  and  clearly  imports  an  intention  to  give  the  legacy 
of  $100  to  John  Baily.  This  is  not  and  cannot  be  controverted  by 
parol  proof.  But  being  admitted,  it  is  competent  for  the  defendant 
still  to  show  that  the  legacy  so  intended  was  in  fact  paid  in  the 
lifetime  of  the  testatrix.  It  would  be  a  fraud  if  the  law  established 
any  other  rule.  Taking  a  case  where  but  one  bounty  is  intended 
of  $100,  and  provision  is  made  by  will  for  conferring  that  bounty, 
if  paid  in  the  lifetime  of  the  testator,  it  would  be  against  his  will 
for  the  legatee  to  claim  a  second  bounty  of  $100,  afterwards,  under 
the  will.  The  law  is  then  open  for  the  jury  to  inquire,  whether 
the  $100  named  in  the  will,  and  the  $100  paid  by  Elizabeth  Snyder, 
in  her  lifetime,  constitute  the  same  sum.  If  but  one  bounty  was 
intended,  and  that  was  distinctly  paid  by  Mrs.  Snyder,  in  her  life- 
time, in  full  and  complete  satisfaction  of  the  whole,  then  the  plain- 
tiff cannot  recover.  But  if  the  two  sums  were  different — one 
intended  as  the  bounty  of  her  husband,  and  the  other  as  her  own 
bounty,  then  the  plaintiff  ought  to  recover.  This  is  a  question  of 
fact  for  the  jury;  you  ought  to  be  well  satisfied  that  the  payment 
of  the  $100  in  her  lifetime  was  not  in  lieu  of  the  same  $100  men- 
tioned in  her  will,  before  you  find  for  the  plaintiff. 

In  this  court,  the  admission  of  the  evidence  mentioned  in  the 
first  bill  of  exceptions,  and  the  charge  of  the  court,  were  assigned 
as  errors. 

Watts,  for  plaintiff  in  error. — The  rule  of  law  is  unquestioned,  that 
a  will  is  not  to  be  expounded  by  anything  but  itself;  and  this  rule,  as 
applicable  to  this  will,  is  clearly  expressed  in  the  case  of  Innes  v. 
Johnston,  4  Ves.  573,  where  it  is  said  :  "It  turns  out  that  there  was 
among  the  assets  one  bond  for  the  exact  amount  of  the  legacy ;  but 
there  were  many  other  bonds  belonging  to  the  testator,  and  it  was 
insisted,  and  very  properly,  that  the  court  is  to  determine,  upon 
the  face  of  the  will,  whether  the  legacy  be  specific  or  pecuniary,  and 
not  to  travel  into  the  account  of  the  effects,  to  see  whether  that 
shall  be  turned  into  a  specific  legacy,  which  upon  the  face  of  the 
will  is  to  be  taken  as  pecuniary."  The  same  doctrine  is  laid  down 
in  Andrews  v.  Emmot,  2  Bro.  C.  C.  297 ;  by  Lord  Eldon,  in  Nannoch 
v.  Ilorton,  7  Ves.  400;  in  1  Ves.  Jr.  285,  and  in  1  Hop.  on  Leg.  273. 
There  is  a  class  of  cases  founded  in  the  relation  between  parent  and 
child,  wherein  a  court  of  equity,  without  any  intention  expressed 
by  the  father,  raises  a  presumption  upon  the  natural  obligation  he 
owes  to  his  child ;  that  a  gift,  either  by  deed  or  will,  is  intended 
not  merely  as  a  bounty,  but  a  portion  ;  but  the  same  presumption 
does  not  arise  between  the  legatee  and  a  stranger,  or  even  a  puta- 
tive father.  Where  a  stranger  or  putative  father  gives  a  legacy  for 
a  particular  purpose,  expressed  in  his  will,  and  afterwards  advances 


0<?M829.]  OF  PENNSYLVANIA.  129 

[Baily  ».  Herkes.] 

money  for  the  same  purpose,  it  is  an  ademption  of  the  legacy  :  1 
Hop.  on  Leg.  272.  It  follows  that  if  this  purpose  is  not  expressed 
in  the  will,  it  cannot  be  made  appear  by  parol  evidence.  In  this 
case  the  same  evidence  which  proved  the  payment  of  the  $100  to 
John  I3aily,  established  the  fact  that  it  was  paid  in  pursuance  of 
the  injunction  of  the  husband  of  the  testatrix,  or  in  other  words  in 
discharge  of  the  obligation  she  owed  her  husband,  it  was  in  fact  the 
bounty  of  her  husband.  The  parol  evidence  admitted  by  the  court 
so  explained  and  qualified  the  bequest  in  the  will  as  to  show  that 
the  intention  of  the  testatrix  in  her  will,  was  in  that  way  to  comply 
with  the  injunction  of  her  husband,  that  she  did  not  intend  the  leg- 
acy as  a  bounty  of  her  own,  as  it  appeared  in  the  will  to  be,  but 
the  bounty  of  her  husband. 

Carothers,  for  defendant  in  error,  whom  the  court  refused  to  hear. 

Judgment  affirmed. 


Moore  et  al.  against  Kline. 

M.  obtained  judgment,  in  November  1808,  upon  which  ho  issued  a  sci.  fa. 
to  August  term  1810,  to  which  the  plea  of  payment  was  put  in.  and  issue 
joined  thereon.  His  counsel  was  appointed  president  judge,  and  in  I8l'j  a 
list  of  causes  in  which  he  had  been  concerned,  and  among  them  this,  waa 
certified  for  a  special  court.  On  this  list  the  words  "  settled,  says  Mr.  l>un- 
can,"  were  written  in  the  handwriting  of  the  judge,  in  the  entry  of  this  cause  ; 
and  again,  on  another  list,  certified  in  1817,  the  word  "settled."  Mr.  I),  was 
counsel  for  the  defendant,  and  these  entries  were  never  transferred  from  the 
trial-lists,  but  in  1823  they  were  on  motion  ordered  to  be  stricken  out,  and  in 
182")  a  verdict  and  judgment  rendered  for  the  plaintiff':  Htl<l,  that  the  lien  of 
thejudgment  remained,  and  was  not  postponed  to  a  judgment  obtained  against 
the  defendant  after  these  entries  had  been  made,  and  before  they  had  been 
stricken  out. 

A  trial-list,  certified  under  an  Act  of  Assembly  for  holding  a  special  court, 
forms  no  part  of  the  record:  it  is  the  private  paper  of  the  judge,  which  he 
K«\8  a  right  to  do  with  as  he  pleases,  and  the  entries  made  upon  it  by  him  are 
intended  for  his  own  information. 

THIS  was  an  appeal  from  the  decree  of  the  Court  of  Common 
Pleas  of  Cumberland  county,  distributing  the  proceeds  of  the  sale 
of  the  real  estate  of  George  Kline,  Sr.,  deceased,  made  on  execu- 
tion by  the  sheriff  of  that  county,  and  upon  a  rule  brought  into 
court  by  him  for  distribution  on  the  15th  of  May  182S. 

The  appellants  claimed  the  money  upon  a  judgment  entered 
against  George  Kline,  Sr.,  in  November  1808. 

A  scire  facias  issued  on  this  judgment,  No.  18,  to  August  term 
1810,  in  which  a  rule  to  plead  was  entered  on  the  10th  of  October 

1  P.  &  W.— 9 


130  SUPREME  COURT  [Chambersburg 

[Moore  v.  Kline.] 

1810,  and  the  pica  of  payment  put  in,  and  an  issue  joined  upon  that 
plea. 

James  Hamilton,  Esq.,  who  had  been  counsel  for  the  plaintiff, 
was  appointed  president  judge  of  the  Ninth  Judicial  District,  and 
upon  his  appointment,  a  list  of  causes,  in  which  he  was  concerned, 
was  made  out  in  1816,  for  a  special  court  to  be  held  by  Judge 
Franklin. 

This  cause  was  entered  on  that  list,  and  the  words  "  settled,  says 
Mr.  Duncan,"  were  marked  to  the  entry  of  it  on  the  list,  in  the 
handwriting  of  the  Judge.  Mr.  Duncan  was  then  the  counsel  for 
the  defendant,  George  Kline. 

On  the  20th  of  March  1817,  the  prothonotary  certified  another 
list  of  causes,  in  which  Judge  Hamilton  had  been  concerned,  for  a 
special  court  appointed  to  be  held  by  Judge  Scott.  This  cause  was 
again  put  down  on  this  list,  and  the  word  "  settled"  entered  in  it  in 
the  handwriting  of  Judge  Scott. 

Neither  of  these  entries  were  ever  transferred,  but  the  certified 
trial  lists  remained  in  the  prothonotary's  office  of  the  county.  On 
the  loth  of  May  1823,  a  rule,  at  the  instance  of  the  plaintiffs,  in 
judgment  was  obtained  "  to  show  cause  why  the  last  entry  made  by 
the  court  in  this  cause  should  not  be  stricken  out,  having  been 
made  by  mistake,  and  without  authority;"  and  on  the  10th  Decem- 
ber 1824,  this  rule  was  made  absolute.  The  cause  was  tried  on 
the  2oth  August  182o,  and  a  verdict  and  judgment  in  favor  of  the 
plaintiffs  for  $1323. 69£  were  rendered. 

George  Kline,  Jr.,  claimed  the  money  on  a  judgment  of  the  Court 
of  Common  Pleas  of  Cumberland  county  against  George  Kline,  Sr., 
entered  the  3d  November  1811,  for  $19*10. 

The  decree  of  the  Court  of  Common  Pleas  of  Cumberland  county 
•was  in  favor  of  George  Kline,  Jr.,  and  postponed  the  judgment  of 
the  appellants.  The  question  raised  upon  the  exception  to  this 
decree  was  as  to  the  effect  of  the  entries  made  on  the  trial  lists  in 
the  suit  in  favor  of  the  appellants. 

Williamson  and  Mctzyer  (with  whom  was  Parker),  for  the  appel- 
lants, contended  that  entries  made  on  the  trial  lists,  and  not  trans- 
ferred to  the  appearance  or  continuance  docket,  cannot  have  the 
effect  of  postponing  the  judgments  of  the  appellants  to  that  of  the 
appellee.  They  were  made  by  mistake,  and  as  between  the  parties 
they  are  wholly  nugatory. 

The  only  ground  upon  which  they  can  be  made  to  operate  in 
favor  of  the  subsequent  judgment-creditor,  is,  that  he  may  have 
advanced  his  money  on  the  faith  of  these  entries,  as  evidence  of 
the  satisfaction  of  the  antecedent  judgment.  Now?  if  this  judgment- 
creditor  did  so  advance  his  money,  and  take  a  judgment  for  it,  he 
must  prove  it;  and  his  simple  allegation  of  the  fact  will  not  suffice. 


Oct.  1829.]  OF  PENNSYLVANIA.  131 

[Moore  v.  Kline.] 

No  direct  evidence  is  attempted  on  this  point,  and  the  existence  of 
the  entries  on  the  trial-lists  will  not  justify  the  inference. 

There  is  no  proof  that  he  had  actual  notice  of  these  entries,  and 
the  entries  themselves  do  not  afford  evidence  of  constructive  notice. 
Arid  without  the  one  or  the  other,  it  is  manifest  that  the  subsequent 
judgment-creditor  is  not  prejudiced. 

The  entries  were  not  on  the  record,  nor  of  record.  A  record  is 
the  enrolment  of  the  doings  of  a  court  of  record.  These  trial-lists 
were  directed  by  the  Act  of  Assembly  to  be  made  out,  and  sent  to 
the  judge :  Purd.  Dig.  337.  They  were  his  private  papers,  arid 
might  have  been  kept  or  destroyed  by  him  ;  and,  in  truth,  although 
found  in  the  office,  they  were  never  filed  or  preserved  with  the  care 
usually  taken  of  records.  In  the  case  of  Black  v.  Dobson,  11  S.  & 
R.  94,  it  was  decided  that  to  preserve  the  lien  of  a  judgment  beyond 
five  years  after  its  entry,  the  cessat  must  be  entered  on  the  record. 
It  is  not  enough  that  it  is  endorsed  on  a  paper  filed  in  the  cause. 
If  this  strictness  be  required  to  preserve  a  lien,  the  same  strictness, 
by  a  parity  of  reason,  should  be  required  to  defeat  it ;  and  the  entry 
in  the  one  case,  as  in  the  other,  must  be  made  on  the  record,  to 
have  any  effect :  Lessee  of  Ileister  v.  Fortner,  2  Binn.  40  ;  Peebles 
v.  Heading,  8  S.  &  11.  496 ;  Weidler  v.  Farmers'  Bank  of  Lancas- 
ter, 11  Id.  139. 

Alexander  and  Carothers,  for  the  appellees. — A  record  is  the 
evidence  of  the  doings  of  a  court  of  record,  and  these  entries  come 
within  the  definition.  They  are  in  the  handwriting  of  the  judge, 
and  made  by  him  in  court,  as  evidence  of  the  doings  of  that  court, 
in  the  proper  case.  And  it  was  so  treated  by  the  plaintiff  himself. 
No  continuances  were  entered  from  1810  to  1823,  and  the  plain- 
tiff's counsel  then  moved  to  strike  out  the  last  entry  made  by  the 
court  in  this  cause.  At  that  time  George  Kline,  Sr.,  was  dead, 
and  the  plaintiff  prevailed  in  his  motion,  and  afterwards  obtained  a 
verdict. 

But  whether  the  entries  be  of  record  or  not,  is  of  no  consequence. 
They  were  made  in  this  cause,  and  estopped  the  plaintiff  to  deny 
their  verity  so  far  as  respects  subsequent  judgment-creditors:  Be- 
bee  v.  Bank  of  New  York,  1  Johns.  R.  540. 

To  avoid  this  effect,  it  was  incumbent  on  the  plaintiff  to  show 
that  the  subsequent  judgment-creditor  had  notice  that  the  entries 
were  wrong. 

The  word  "settled"  means  satisfied:  Berks  and  Dauphin  Turn- 
pike Co.  v.  Myers,  11  S.  &  R.  123 ;  Commonwealth  r.  Stoever,  1 
Id.  480 ;  1  Phil.  Ev.  80. 

The  principal  must  disavow  the  act  of  his  agent,  or  it  is  binding 
on  him  :  Bredin  v.  Dubarry,  14  S.  &  R.  27.  If,  therefore,  these 
entries  were  made  by  consent  of  the  attorney  in  the  cause,  his 
authority  to  do  so  should  have  been  promptly  denied.  It  is  against 


132  SUPREME  COURT  [Chamberdurg 

[Moore  v.  Kline.] 

equity,  after  the  lapse  of  so  many  years,  to  permit  him  to  do  it,  to 
the  prejudice  of  an  innocent  third  person,  who  subsequently 
acquired  rights. 

The  appellee  confided  in  this  entry,  and  in  faith  of  its  truth  his 
money  was  advanced.  lie,  by  referring  to  the  docket  entry,  would 
perceive  that  this  cause  had  gone  into  the  special  court,  and  the 
Act  of  Assembly  would  inform  him  that  a  certified  list  had  been 
made  out ;  this  would  put  him  on  inquiry,  and  would  result  in  a 
knowledge  of  the  entries  made  on  the  trial-list.  And  in  point  of 
fact,  this  was  the  case,  although  no  direct  evidence  could  be  given 
of  it. 

The  issuing  of  the  scire  facias  did  not  continue  the  lien  :  Kauf- 
felt  v.  Bower,  7  S.  &  R.  73. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — The  Act  of  the  4th  April  1798  prescribes  that  a 
judgment  shall  not  continue  a  lien  for  a  longer  term  than  five 
years,  unless  within  that  time  a  scire  facias  be  sued  out  by  the 
plaintiff.  This  scire  facias  was  sued  out  in  due  time,  but  it  is  con- 
tended that  notwithstanding  the  plaintiff  has  lost  his  lien,  because 
he  has  not  pursued  the  remedy  pointed  out  by  the  act  with  the 
requisite  diligence.  In  a  case  at  Philadelphia,  not  yet  reported, 
the  court  decided  that  when  a  scire  facias  had  been  issued,  but  not 
returned,  and  when  it  appeared  that  no  steps  whatever  had  been 
taken  to  prosecute  the  suit,  that  there  was  such  gross  negligence 
as  to  amount  to  an  abandonment  of  the  writ ;  that  the  mere  issuing 
a  scire  facias,  without  more,  was  not  sufficient  to  keep  up  the  lien 
for  an  indefinite  length  of  time.  That,  however,  is  not  the  case, 
and  we  are  unwilling  to  extend  the  principle  further  than  is  war- 
ranted by  the  terms  of  the  case  to  which  we  have  referred. 

This  scire  facias  was  issued,  returned  served,  a  plea  of  payment 
put  in,  and  the  cause  put  to  issue,  and  placed  on  the  trial-list  from 
time  to  time.  At  a  special  court  held  by  Judge  Franklin,  an  entry 
of  "settled"  was  made  on  the  trial-list,  at  the  suggestion,  as  it  ap- 
pears, of  Mr.  Dunran,  who,  at  that  time,  was  the  counsel  for  the 
defendant.  When  again  put  upon  the  list  of  the  special  court,  a 
similar  entry  was  made  by  Judge  Scott,  but  at  whose  instance  does 
not  appear — possibly  at  the  instance  of  the  same  counsel,  or  per- 
haps caused  by  a  hasty  reference  to  the  entry  previously  made. 
The  cause  appears  regularly  continued  on  the  docket ;  nor  shall  I 
6top  to  inquire  when  those  entries  were  made,  or  is  it  material.  On 
the  13th  of  May  1823,  the  entry  "settled,"  was  on  motion  stricken 
out  by  the  court,  having  been  made  by  mistake  and  without  author- 
ity. After  this,  I  can  perceive  no  indication  of  an  abandonment 
of  the  writ,  or  anything  that  amounts  to  gross  negligence.  When 
we  consider  the  peculiar  situation  of  this  cause,  we  can  be  at  no 
loss  to  perceive  why  it  was  suffered  to  slumber  on  the  docket.  In 


Oct.  1829.]  OF  PENNSYLVANIA.  133 

[Moore  ».  Kline.] 

all  probability  neither  the  plaintiff  nor  his  counsel  were  aware  of 
the  entry  ;  for  if  made  in  his  absence,  the  trial-list  would  be  the 
last  place  where  he  would  expect  to  find  it.  He  would  be  guided 
by  the  entries  made  by  the  prothonotary  on  his  docket.  It  appears 
to  me  to  be  dangerous  to  adopt  a  latitude  of  construction  as  regards 
this  act,  as  we  would  introduce  uncertainty  as  to  what  degree  of 
diligence  is  necessary  to  continue  the  lien  of  a  judgment.  Num- 
berless questions  will  arise  from  an  attempt  to  superadd  a  limitation 
to  the  lien  of  a  judgment,  not  warranted  by  the  terms  of  the  act 
itself.  Independent  of  any  statutory  provision,  the  judgment  and 
the  lien  were  co-existent,  and  it  is  the  same  now,  when  a  scire  facias 
has  in  fact  issued  within  the  term  of  five  years ;  except  in  the  case 
of  a  writ  without  any  return  of  the  sheriff,  and  without  any  steps 
whatever  being  taken  in  prosecution  of  the  suit.1 

The  entry  "settled"  generally,  or  settled  says  plaintiff's  or  de- 
fendant s  attorney,  is  often  made  ;  it  is  certainly  a  loose  mode  of 
doing  business;  but  I  am  not  prepared  to  say  it  is  a  nullity,  when 
on  the  record.  It  would  perhaps  amount  lo  an  entry  of  satisfaction 
or  a  discontinuance.  However  that  might  be,  I  cannot  agree  to 
give  the  ertfry  "settled,"  under  the  circumstances  of  this  case,  that 
effect.  It  is  a  memorandum  on  the  trial-list  furnished  the  judge  of 
the  special  court,  under  the  Act  of  1816,  arid  which  forms  no  part 
of  the  record.  The  trial-list  is  his  own  private  paper,  which  lie  has 
a  right  to  do  with  as  he  pleases,  and  which,  in  fact,  some  judges 
convert,  without  scruple,  to  their  own  private  purposes.  In  prac- 
tice it  is  usual  in  some  counties  to  make  out  two  trial-lists,  one  for 
the  court,  the  other  for  the  bar,  and  in  addition  the  prothonotary 
keeps  a  minute-book,  in  which  he  marks  the  style  of  the  suit,  the 
proceedings  in  the  cause,  comprising  the  amendments  to  the  plead- 
ings, the  names  of  the  jurors,  and  the  verdict,  &c.,  and  these  entries 
he  afterwards  transfers  to  the  continuance  docket.  In  the  trial-list 
furnished  the  court,  the  judge  makes  his  memorandums,  which  are 
intended  for  his  own  information  and  guidance  during  the  term, 
noting  the  causes  that  are  continued,  those  marked  for  argument, 
and  when  tried,  states  in  short,  "tried,"  and  sometimes,  though  not 
always,  whether  the  verdict  was  for  the  plaintiff  or  defendant,  and 
the  amount  of  the  verdict.  Sometimes  the  judge  takes  the  list 
with  him,  sometimes  he  leaves  it  in  his  drawer,  and  at  other  times 
with  the  prothonotary  ;  and  whether  he  does  the  one  or  the  other, 
is  more  frequently  the  result  of  accident  than  design.  That  an 
entry  on  a  paper  such  as  this,  should  have  all  the  sanctity  and  invio- 
lability of  a  record,  would,  I  apprehend,  introduce  a  laxity  of  prac- 
tice pernicious  in  the  extreme  to  suitors.  A  record  should  be  fixed 
and  certain,  and  not  depending  as  to  its  place,  or  in  any  other  way, 
on  the  whim  of  any  person.  It  is  not  my  intention  to  define  what 
in  Pennsylvania  constitutes  a  record,  but  it  will  be  sufficient  to 

1  But  see,  In  re  Fulton's  Estate,  1  Smith  1204. 


134  SUPREME  COURT  \_Chambersburg 

[Moore  v.  Kline.] 

show,  that  a  trial-list  of  the  judge  does  not  partake  of  that  charac- 
ter. If  this  entry  be  a  record  entry  in  this  respect,  it  must  be  so 
in  all  others,  and  then  it  would  follow,  that  a  judgment  entered  on 
the  trial-list,  and  not  transferred  to  the  continuance  docket  or  any 
farther  notice  taken  of  it,  would  affect  subsequent  purchasers,  and  in 
many  cases  the  utmost  degree  of  diligence  on  his  part  would  not 
avail  to  avoid  loss.  To  what  does  a  purchaser  look  for  the  existence 
of  judgments?  Not  surely  to  the  trial-list,  but  to  the  docket;  and 
if  not  regularly  entered  there,  it  would  be  contrary  to  every  princi- 
ple of  justice,  that  he  should  be  injured  ;  for  in  such  case  he  would 
have  no  notice,  either  express  or  implied.  The  advocates  of  the 
contrary  opinion  seem  to  me  to  be  carried  away  with  the  hardship 
of  the  plaintiff's  losing  his  debt,  when  he  has  obtained  a  verdict  and 
judgment.  But  is  it  not  much  more  hard  that  the  innocent  pur- 
chaser should  bear  the  loss,  when  he  has  taken  every  pains  to  inform 
himself  by  regular  searches  in  the  proper  offices.  It  is  the  duty  of 
a  plaintiff  who  obtains  a  judgment,  to  see  that  the  regular  entries 
are  made ;  and  if  any  loss  arises  from  the  default  of  the  prothono- 
tary,  it  is  the  plaintiff,  from  whose  neglect,  in  some  measure,  it  has 
arisen,  who  should  bear  the  burden  of  a  lawsuit,  and  not  a  subse- 
quent purchaser,  who  had  nothing  to  do  with  the  transaction,  and 
who  has  taken  every  pains,  by  the  necessary  searches,  to  inform  him- 
self of  the  existence  of  liens. 

Decree  of  the  Court  of  Common  Pleas  reversed,  and  a 
decree  entered  for  the  appellants. 

HUSTON,  J.,  and  SMITH,  J.,  dissented. 

Restricted  to  its  peculiar  facts,  1  Jones  40C,  407. 


Oct.  1829.]  OF  PENNSYLVANIA.  135 


Beitler  et  al.  against  Zeigler. 


IN    ERROR. 


The  judgment  of  quod  computet,  in  an  action  of  account-render,  is  interlocu- 
tory, upon  which  a  writ  of  error  will  not  lie. 

ERROR  to  Adams  county. 

This  was  an  action  of  account-render,  upon  which  judgment 
quod  computet  had  been  entered  by  default  upon  rules  to  plead,  and 
at  the  instance  of  plaintiff,  auditors  were  appointed,  when  this  writ 
of  error  was  sued  out ;  which 

Stevens,  for  defendant  in  error,  moved  to  quash,  on  the  ground 
that  a  judgment  quod  computet  is  not  a  final  judgment  upon  which 
a  writ  of  error  will  lie. 

PER  CURIAM. — Let  the  writ  be  quashed. 

Referred  to,  3  \orria  240 ;  s.  c.  4  W.  N.  C.  426. 


Seariglit  against  Craighead  ct  al. 

IN    ERROR. 

The  acknowledgment  of  a  debt,  barred  by  the  Statute  of  Limitations,  by 
a  partner  after  the  dissolution  of  the  partnership,  does  not  operate  to  revive 
the  debt,  and  avoid  the  Statute  of  Limitations  as  to  the  other  partners. 

ERROR  to  the  Court  of  Common  Pleas  of  Cumberland  county. 
This  case,  the  facts  of  which  are  sufficiently  stated  in  the  opinion 
of  the  court,  was  argued  by 

Alexander,  for  the  plaintiff  in  error,  who  cited  Yea  ?-.  Fouraher, 
2  Burr.  1099  ;  Wister's  Ex'rs  v.  Gray's  Adm'rs,  5  Binn.  583  ; 
Sluby  v.  Chomplin,  4  Johns.  11.  461 ;  Morris's  Lessee  r.  Vanderin, 
1  Dall.  65;  Miles  v.  Moodic,  3  S.  &  R.  211 ;  Kenwood  r.  Cheese- 
man,  Id.  500 ;  Fries  ?>.  Boisselet,  9  Id.  128 ;  Quantock  et  al.  v. 
England,  5  Burr.  2630. 

Penrose  and  Carothers,  contra,  who  referred  to  Fries  r.  Boisselet, 
9  S.  &  11.  129;  Eckert  »•.  Wilson,  12  Id.  393;  Weister's  Adm'rs 
v.  Gray's  Adm'rs,  5  Binn.  573;  Slocuin  v.  Perkins,  3  S.  \  R.  295. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — The  original  action  was  brought  by  the  plaintiff  in 
error  against  the  defendants,  on  the  llth  of  December  1823,  to 


136  SUPREME  COURT  [Chambersburg 

[Searifjht  v.  Craighead.] 

recover  the  value  of  certain  goods  sold  and  delivered.  The  defend- 
ants pleaded  non  assumpserunt,  and  non  assumpsorunt  infra  sex 
anno*.  Issues  were  joined,  and,  at  the  trial,  a  verdict  was  returned 
for  the  defendants,  and  judgment  thereon  rendered.  Certain  points 
had  been  presented  to  the  court,  to  the  answers  to  which  excep- 
tions were  taken  by  the  plaintiff's  counsel,  and  are  now  assigned 
here  for  error. 

Two  errors  have  been  assigned  upon  the  charge  of  the  court,  on 
the  subject  of  the  Act  of  Limitations ;  and  in  answer  to  the  points 
put  by  the  plaintff 's  counsel.  The  court  were  requested  to  charge 
the  jury,  u  That  if  Ege  offered  to  pay  one-third  of  the  debt,  the 
offer  was  effectual  as  to  the  whole  debt,  for  if  liable  at  all,  he  is 
liable  for  the  whole."  To  which  the  court  below  answered  (and  so 
instructed  the  jury  in  their  charge),  "  That  the  suit  was  a  joint  one, 
against  the  defendants  as  partners.  The  claim  was  against  the 
three  defendants,  as  liable  jointly,  and  severally  for  the  whole  ;  and 
that  an  offer  by  George  Ege,  under  these  circumstances,  after  suit 
brought,  to  the  plaintiff's  attorney,  to  pay  him  one-third  of  the 
debt;  for  the  purpose  of  getting  the  lien  of  the  whole  judgment 
removed  from  his  land,  and  the  offer  not  accepted,  would  not  in  law 
remove  the  operation  of  the  Statute  of  Limitations ;  such  an  offer 
under  such  circumstances,  would  not  remove  the  barrier  against  the 
plaintiff's  recovery,  if  it  otherwise  existed.  This  point  is  vague 
and  uncertain  in  its  terms ;  as  applicable  to  the  evidence  in  the 
cause,  we  cannot  answer  it  in  the  affirmative. 

"  It  is  unnecessary  to  consider  it  as  an  abstract  proposition,  not 
referring  to  any  evidence  in  the  cause." 

If  this  answer  of  the  court  be  considered  with  reference  to  the 
law,  as  to  an  offer  to  compromise  a  disputed  claim,  nothing  is  better 
settled  than  that  such  an  offer,  not  accepted,  can  never  be  used  as 
evidence  against  the  party  who  made  it.  This  is  abundantly  clear 
from  the  case  of  Slocum  <>.  Perkins,  3  S.  &  II.  295. 

But  if  this  answer  be  considered  with  reference  to  the  time  and 
substance,  to  which  the  evidence  on  which  it  is  a  commentary, 
relates,  it  then  presents  another  question,  which  may  be  considered 
with  the  second  error  alleged,  as  it  is  involved  in  it. 

The  plaintiff's  counsel  requested  the  court  to  charge  the  jury, 
"  that  a  promise  made  after  suit  brought,  is  as  effectual  as  if  made 
before,"  which  the  court  refused  to  do,  and  charged  the  jury  in  the 
negative  of  this  proposition. 

It  may  be  remarked,  that  the  court  below  gave  the  plaintiff  the 
full  benefit  of  the  evidence  as  to  the  declarations  made  by  George 
Ege,  "  that,  if  the  debt  were  a  just  debt,  he  would  not  plead  the 
Statute  of  Limitations,"  as  the  court  submitted  it  as  a  matter  of 
fact  from  the  evidence,  whether  this  admission  was  qualified  by  the 
expression  of  unwillingness  to  pay,  and  a  denial  of  the  honesty 
of  the  debt,  and  indeed  the  plaintiff  has  not  assigned  specifically  for 


Oct.  1829.]  OF  PENNSYLVANIA.  137 

[Searight  v.  Craighead.] 

error,  the  charge  of  the  court  with  regard  to  this  evidence,  although 
elicited  by  another  point  put  to  him. 

An  able  English  judge  had  said,  that  the  two  best  statutes  in 
their  books  are  the  Statute  of  Frauds  and  the  Statute  of  Limita- 
tions. 

Conflicting,  and  indeed  inconsistent  decisions,  upon  the  latter 
statute,  are,  however,  to  be  found  in  the  English  books  of  reports. 
Arid  some  of  them  are  unquestionably  a  plain  departure  from  the 
express  provisions  of  this  most  salutary  statute ;  and  at  one  period 
seemed  to  threaten  it  with  destruction,  by  a  kind  of  judicial  legisla- 
tion ;  and  until  lately  a  struggle  seems  to  have  been  made  to  avoid 
the  effect  of  it. 

It  would  appear,  in  tracing  this  subject,  that  at  first,  all  agreed, 
that  there  must  be  an  express  promise  to  take  a  case  out  of  the 
statute.  Afterwards,  it  was  decided,  that  an  acknowledgment  of 
the  debt,  was  at  the  utmost  only  evidence  from  which  a  promi.se  to 
pay  might  be  inferred  by  the  jury  ;  but  if  a  bare  acknowledgment 
only  was  found  by  them,  it  would  not  be  sufficient.  Then  Lord 
Mansfield  held,  that  a  bare  acknowledgment  of  a  debt,  even  after 
action  brought,  would  be  sufficient  to  sustain  the  action,  although 
not  commenced,  till  after  the  expiration  of  the  six  years.  And  we 
are  told  (and  that  by  an  English  judge),  that  this  was  adhered  to 
till  the  principle  was  carried  to  such  a  degree  of  absurdity,  that  a 
declaration  of  a  defendant  that  he  would  not  pay  (5  Maul.  &  Sel. 
75),  was  held  a  sufficient  acknowledgment  to  take  the  case  out  of 
the  statute.  The  cases  themselves  csfn  hardly  give  us  further  light, 
but  rather  tend  to  confuse  and  mislead ;  and  the  force  of  precedent 
which  they  established  for  a  long  time,  restrained  judges  from 
vindicating  the  statute,  and  placing  its  construction  on  rational 
grounds,  although  almost  at  every  step,  they  mourned  over  the  con- 
dition to  which  it  had  been  reduced.  Our  own  courts  had  followed 
these  decisions  to  their  full  extent ;  but  the  Supreme  Court  of  this 
state  Avas  the  first,  or  among  the  first,  to  discover  that  the  decisions 
had  gone  too  far — and  the  case  of  Jones  r.  Moore,  5  Binn.  573, 
(and  the  decisions  hereafter  cited),  led  the  way  to  a  rational  con- 
struction of  cases  under  this  law.  In  England,  the  courts  have 
been  retracing  their  steps,  and  have  got,  or  are  getting  back  to  the 
plain  construction  and  meaning  of  the  statute. 

Reason,  then,  has  at  last  prevailed  over  precedent,  and  the  statute 
has  been  restored  to  what  the  legislature  originally  intended  it  to 
bo,  a  protection  against  stale  and  dishonest  claims,  the  evidence  as 
to  which  has  been  consumed  by  time,  or  otherwise  lost. 

To  take  the  case  out  of  the  Act  of  Limitations,  an  express  promise 
to  pay  is  not  necessary,  but  if  the  plaintiff  rely  on  admissions  of  the 
defendant,  he  must  show  such  admissions  as  may  fairly  support  the 
inference  of  such  a  promise.  If.  therefore,  the  admission  be  quali- 
fied in  a  way  to  repel  the  presumption  of  a  promise  to  pay.  or,  if  it 


138  SUPREME  COURT  [Chamberdurg 

[Scnright  v.  Craighead.J 

be  accompanied  with  words  inconsistent  with  a  promise  to  pay,  it  is 
not  evidence  of  a  promise  to  take  a  case  out  of  the  Act  of  Limita- 
tions :  Eckert  r.  Wilson,  12  S.  &  R.  393 ;  Roosewalt  v.  Waite,  6 
Johns.  Ch.  290 ;  Clementson  v.  Williams,  8  Cranch  72 ;  Fries  v. 
Boisselet,  9  S.  &  R.  128. 

It  is  settled  that  the  acknowledgment  of  a  debt  by  one  partner, 
after  the  dissolution  of  the  co-partnership,  is  not  sufficient  to  take 
the  case  out  of  the  Act  of  Limitations  as  to  the  other  partners :  Bell 
r.  Morrison  et  al.,  1  Pet.  373,  lately  reported.  But  in  the  case 
before  us,  the  admission,  such  as  it  is  was,  was  not  only  after  suit 
brought,  and  long  after  the  Act  of  Limitations  had  run  against  the 
debt ;  but  after  all  connection  had  ceased  to  exist  between  the 
defendants  as  partners  on  their  contract  to  make  the  road  in  1814 ; 
for  we  find  in  1821,  the  accounts  were  finally  settled  between  them, 
and  balances  struck. 

The  admission  then  was  by  one  partner  (taking  it  for  granted 
that  the  defendants  had  been  partners),  after  the  dissolution  of 
the  copartnership,  and  after  suit  brought.  I  am  aware  that  in 
the  case  of  Jones  v.  Moore,  5  Binn.  573,  it  has  been  decided, 
that  an  admission,  which  takes  a  case  out  of  the  Act  of  Limita- 
tions, does  not  operate  to  revive  the  old  debt;  but  is  the  evi- 
dence of  a  new  promise,  of  which  the  old  debt  is  the  considera- 
tion ;  but  without  stopping  to  inquire  whether  such  admission, 
after  suit  brought,  is  sufficient  in  an  ordinary  case,  we  proceed  to 
consider  the  other  question  involved.  Is  such  admission,  made  by 
one  partner  at  any  time,  after*the  dissolution  of  the  firm,  effectual 
for  this  purpose?  This  part  of  the  case  has  in  fact  been  recently 
decided  in  two  cases,  which  I  will  mention.  The  law  is  well  set- 
tled, that  after  the  dissolution  of  a  partnership,  the  partners  cease 
to  have  any  power  to  make  a  contract  in  any  way  binding  on  each 
other.  The  dissolution  puts  an  end  to  the  authority,  and  operates 
as  a  revocation  of  all  power  to  create  new  contracts.  This  prin- 
ciple, taken  in  connection  with  that  already  referred  to,  that  the 
admission  is  evidence  of  a  new  promise  of  which  the  original  debt 
is  only  the  consideration,  brings  us  to  the  conclusion,  at  which  the 
Supreme  Court  has  already  arrived,  after  full  argument,  that  the 
acknowledgment  by  a  partner,  after  the  dissolution  of  the  copart- 
nership, will  not  take  the  debt  out  of  the  Act  of  Limitations,  so  as 
to  make  the  copartners  liable.  This  point  was  so  decided  in 
Philadelphia  at  the  December  Term  1827,  of  this  court,  in  a  case 
in  which  his  honor,  Justice  Rogers,  delivered  the  opinion  of  the 
court,  which  will  be  reported.  It  was  also,  a  short  time  afterwards, 
so  decided  by  the  Supreme  Court  of  the  United  States,  at  their 
January  Term  1828,  in  the  case  above  cited,  of  Bell  v.  Morrison  et 
al.,  reported  in  1  Pet.  3ol,  373,  where,  in  the  very  able  and  elabo- 
rate opinion  of  that  court,  delivered  by  Mr.  Justice  Story,  it  is  said, 
"  that  after  the  dissolution  of  a  partnership,  no  partner  can  create 


Oct.  1829.]  OF  PENNSYLVANIA.  139 

[Searight  v.  Craighead.] 

a  cause  of  action  against  the  other  partners  except  by  a  new  author- 
ity communicated  to  him  for  that  purpose.  It  is  wholly  immaterial 
what  is  the  consideration  which  is  to  raise  such  cause  of  action  ; 
whether  it  be  a  supposed  pre-existing  debt  of  the  partnership  or  any 
auxiliary  consideration  which  might  prove  beneficial  to  them.  Un- 
less adopted  by  them,  they  are  not  bound  by  it.  When  the  Statute 
of  Limitations  has  once  run  against  a  debt  the  cause  of  action  against 
the  partnership  is  gone.  The  acknowledgment,  if  it  is  to  operate 
at  all,  is  to  create  a  new  cause  of  action,  to  revive  a  debt  which  is 
extinct ;  and  thus  to  give  an  action  which  has  its  life  from  the  new 
promise  implied  by  law  from  such  an  acknowledgment,  and  operat- 
ing and  limited  by  its  purport.  It  is  then,  in  its  essence,  the  cre- 
ation of  a  new  right,  and  not  the  enforcement  of  an  old  one.  We 
think  that  the  power  to  create  such  a  right  does  not  exist,  after  the 
dissolution  of  the  partnership,  in  any  partner."  After  this,  to  say 
more  on  this  subject,  or  to  run  through  a  bead-roll  of  cases,  for  in- 
formation, when  the  case  itself  has  been  so  recently  decided  by  two 
of  the  highest  tribunals,  would  really  be  an  idle  parade,  or  waste  of 
time.  It  is  only  necessary  to  add  that  there  is  no  error  in  the  de- 
cision of  the  Court  of  Common  Pleas,  and  the  judgment  is  therefore 
affirmed. 

Judgment  affirmed. 

Referred  to,  2  P.  &  W.  305 ;  5  Norris  506,  s.  c.  6  W.  N.  C.  295. 
Doctrine  followed  and  distinguished,  Kaufl'inan  v.  Fisher  et  ux.,  3  Gr.  302. 
Followed,  10  II.  1G2;  12  Wr.  253  ;  21  Smith  212. 


140  SUPREME  COURT  \_Chambersburg 


Brady  et  al.  against  Colhoun  et  al. 

IN   ERROR. 

Campbell,  in  1805,  bought  of  "W.  5000  acres  of  land,  at  $4  per  acre.  The 
purchase  was  at  a  credit  of  eight  years,  with  interest  at  three  per  cent.,  after 
which  the  principal  was  to  be  paid  at  three,  six  and  nine  years,  reserving  six 
per  cent,  on  unpaid  balances.  By  settlement  made  in  1819,  Campbell  had 
paid  the  interest  to  W.  up  to  that  time,  and  ^4429.  42,  on  account  of  prin- 
cipal. In  an  action  of  assumpsit,  brought  in  1827,  after  Campbell's  death, 
against  the  administrators  of  Colhoun,  for  money  so  paid  to  W.,  in  which  the 
evidence  to  charge  the  defendants  consisted  of  a  series  of  letters  written  by 
Colhoun  to  Campbell,  from  JiSO")  to  1814,  from  which  it  appeared  that  Col- 
houn had  been  let  into  a  participation  in  Campbell's  purchase  :  Held,  that 
six  letters  from  Campbell  to  Colhoun,  in  a  period  of  as  many  years  from 
1S14  to  1S20,  in  which  there  was  no  allusion  to  the  subject,  were  evidence 
of  the  rescission  of  the  agreement  between  Campbell  and  Colhoun. 

The  liability  of  Colhoun  to  contribute  for  the  payments  of  Campbell  whether 
more  or  less  than  his  proportional  part,  would  depend  on  whether  the 
parties  had  agreed  to  apportion  the  profit  or  loss,  which  was  a  fact  for  the 


Ther.e  may  be  a  partnership  to  trade  in  land,  and  it  may,  as  in  any  other 
case,  be  limited  to  purchasing  only,  the  profit  and  loss  being  divisible  as 
stock;  but  this  relation  does  not  necessarily  or  naturally  arise  from  the  bare 
circumstance  of  a  joint  purchase. 

Joint  purchasers,  without  an  agreement  of  partnership,  would  not  be 
entitled  to  the  remedies,  nor  subject  to  the  responsibilities  of  partners. 

If  Campbell,  a*  a  joint  purchaser,  paid  all  the  interest  as  it  became  due,  a 
right  of  action  fora  moiety  of  each  payment  accrued  instantly  to  him  against 
Colhoun,  which  would  be  barred  by  the  Statute  of  Limitations  when  six  years 
had  run  before  suit  brought. 

The  court  below  charged  the  jury,  that  if  the  contract  were  not  rescinded 
between  Campbell  and  Colhoun,  the  former  could  recover  for  interest  paid. 
The  jury  found  &  general  verdict  for  defendants.  Hcl<I,  that  it  appeared  that 
the  jury  went  on  a  distinct  ground  of  fact.  "  the  rescission  of  the.  contract" 
and  if  error  had  been  committed  in  the  charge  as  to  the  principal,  this  court 
would  not  reverse  on  that  ground,  as  it  was  without  prejudice  to  the  party. 

WRIT  of  error  to  a  special  Court  of  Common  Pleas  of  Franklin 
county. 

This  suit  was  an  action  of  indebitatus  assumpsit,  brought  by  the 
plaintiffs  for  money  paid,  laid  out  and  expended  by  the  plaintiff's 
testator  for  the  defendant's  intestate. 

Parker  Campbell,  the  testator,  on  the  25th  day  of  May  1805, 
contracted  with  the  Washington  College  for  the  purchase  of  five 
thousand  acres  of  land,  in  JJeaver  county,  for  which  he  agreed  to 
pay  §4  per  acre.  By  the  agreement,  interest  at  three  per  cent,  per 


Oct.  1829.]  OF  PENNSYLVANIA.  141 

[Brady  v.  Colhoun.] 

annum  on  the  purchase-money,  was  to  be  paid  for  eight  years  ;  when 
so  much  of  it  as  remained  unpaid  was  to  bear  interest  at  six  per  cent., 
the  interest  to  be  paid  semi-annually,  and  the  principal  was  to  be 
paid  in  equal  payments,  at  intervals  of  three  years,  after  the  expi- 
ration of  eight  years. 

No  deed  was  executed  by  the  college  to  Mr.  Campbell,  but  the 
college  retained  the  legal  title  as  a  security  for  the  payment  of  the 
purchase-money.  On  the  1st  of  October  1819,  it  appeared  by  a 
settlement  then  had  with  the  college,  that  Mr.  Campbell  had  paid 
the  interest  up  to  that  time,  amounting  to  $15,000,  and  the  sum  of 
$4429.42,  which  was  credited  on  account  of  the  principal  by  the 
college. 

In  the  year  1824  Mr.  Campbell,  having  failed  to  make  further 
payments,  the  college  brought  ejectments  to  recover  the  lands  sold, 
obtained  judgments  by  arbitration,  and  possession  under  them.  The 
whole  negotiation  with  the  college  was  in  the  name  of  Mr.  Camp- 
bell, and  Mr.  Colhoun,  who  was  the  father-in-law  of  Mr.  Campbell, 
was  not  known  in  the  contract  by  the  college  ;  but  to  prove  his  con- 
nection with  it,  and  make  him  liable  for  a  portion  of  the  purchase- 
money  paid,  letters  from  him  to  Mr.  Campbell1,  dated  in  1805, 1806, 
1807,  1813,  and  on  the  8th  of  June  1814,  were  given  in  evidence, 
in  which  Mr.  Colhoun  admitted  that  he  was  interested  in  the  pur- 
chase ;  spoke  of  Mr.  Campbell  calling  on  Mr.  Reed  for  one-half 
of  the  interest  on  the  purchase-money  ;  called  it  his  part  of  the  in- 
terest, and  informed  Mr.  Campbell  that  he  had  a  number  of  adver- 
tisements printed  for  the  sale  of  "  our  academy  lands,"  and  would 
distribute  them. 

The  defendants,  who  conceded  that  at  one  time  there  had  been 
a  contract  of  some  sort  between  the  parties,  for  the  purchase  of 
these  lands,  relied  on  evidence  to  show  that  it  was  abandoned,  and 
with  this  view  offered  in  evidence  six  letters,  dated  respectively  the 
19th  September  1814,  5th  September  1815,  llth  December  1810, 
5th  November  1819,  and  27th  May  1820,  from  Mr.  Campbell  to 
Mr.  Colhoun,  and  in  which  no  allusion  was  made  to  the  purchase 
of  the  college  lands.  To  this  evidence  the  plaintiffs  objected  ;  but 
it  was  received  by  the  court,  who  signed  a  bill  of  exceptions  which 
was  assigned  for  error  here. 

The  circumstances  of  the  parties,  the  embarrassments  of  Camp- 
bell, in  part  growing  out  of  this  contract  with  the  college,  and  the 
affluence  of  Colhoun  were  relied  upon  by  the  defendants  to  fortify 
the  defence  on  this  point,  and  much  evidence  was  given,  which  it  is 
not  necessary  to  the  proper  understanding  of  the  ease  here  to  detail. 

Parker  Campbell  survived  Mr.  Colhoun  some  years,  and  died  in 
July  1824 ;  and  this  suit  was  brought  on  the  Gth  February  1827. 

The  plaintiff's  counsel,  among  other  points,  requested  the  court 
to  charge  the  jury  ''that  John  Colhoun's  administrators  and  estate 


142  SUPREME  COURT  [Chambersburg 

[Brady  v.  Colhoun.] 

are  liable  to  Parker  Campbell's  executors  for  the  one-half  of  all 
money  he  may  have  paid  on  the  contract  with  the  Washington 
academy ;  and  are  not  confined,  if  otherwise  entitled  to  recover,  to 
the  excess  of  payment  beyond  the  half  that  Parker  Campbell  was 
bound  to  pay." 

On  this  point  the  court  charged  the  jury,  "  that  three  per  cent, 
per  annum  became  due  and  was  payable  semi-annually,  and  after 
eight  years  six  per  cent.  The  college  had  a  right  to  demand  this 
sum  at  the  periods  stipulated.  If  there  was  a  contract  between 
Messrs.  Campbell  and  Colhoun,  by  which  each  had  an  equal  inter- 
est, and  each  was  bound  to  make  equal  payments  under  the  con- 
tract with  the  college,  then  any  sum  paid  from  time  to  time  in 
discharge  of  the  accruing  interest,  by  any  one  of  the  parties  beyond 
his  proportion,  was  paid  for  the  other,  and  the  law  would  raise  a 
promise  to  repay,  but  any  sum  paid  by  either,  beyond  the  interest, 
that  is  in  discharge  of  the  principal,  would  be -a  payment  on  his  own 
account,  provided  such  payment  did  not  exceed  his  proportion  of 
the  purchase-money  ;  and  being  a  payment  on  his  own  account  of 
his  own  debt,  the  law  would  raise  no  promise  on  the  part  of  the 
other  to  repay  it." 

This  part  of  the  charge  was  assigned  for  error  here. 

The  court,  in  answer  to  a  point  put  by  the  defendant's  counsel, 
as  to  the  Statute  of  Limitations,  which  was  relied  on  in  defence, 
charged  the  jury,  that  "  if  Messrs.  Campbell  and  Colhoun  had  a 
joint  interest  in  the  purchase,  and  Mr.  Campbell  acted  as  the  agent, 
and  in  trust  for  Mr.  Colhoun,  and  went  on  from  time  to  time  pay- 
ing his  money  on  the  contract,  as  contended  by  the  plaintiffs,  in 
contemplation  of  carrying  the  contract  into  effect,  and  in  this  way 
paid  more  than  his  proportion  of  the  instalments  annually  due, 
being  under  a  legal  obligation  to  do  so,  he  would  also  have  the  im- 
plied assent  of  Mr.  Colhoun.  The  contract  was  a  continuing  one 
— the  trust  was  to  exist  throughout  the  whole  concern,  and  when 
the  contract  should  be  consummated  the  separate  rights  of  each 
would  be  ascertained.  While  it  continued,  each  might  act  for  the 
other — intermediate  settlements  were  not  contemplated.  It  would, 
therefore,  under  such  circumstances,  be  in  fraud  of  the  Statute  of 
Limitations  to  account  each  payment  a  separate  act,  and  liable  to 
its  operation. 

The  verdict  was  for  the  defendants. 

Washington,  for  the  plaintiff  in  error. — 1.  As  to  the  bill  of  ex- 
ceptions :  The  six  letters  dated  after  1814  (admitted  in  evidence), 
showed  no  connection  with  or  allusion  to  the  contract  in  question, 
and  were  relied  on  to  show  that  it  was  abandoned.  They  were 
wholly  irrelevant,  and  testimony  of  a  dangerous  character.  It 
is  put  in  the  power  of  a  party  to  select  such  as  suited  his  own  pur- 


Oct.  1829.]  OF  PENNSYLVANIA.  143 

[Brady  v.  Colhoun.] 

pose,  and  suppress  the  residue  of  the  correspondence,  the  whole  of 
which  he  cannot  be  forced  to  exhibit,  and  any  part  of  which  he  may 
destroy. 

2.  As  the  charge  of  the  court.  Colhoun  was  not  a  contracting 
party  with  the  college,  and  to  it  he  never  owed  any  liability  ;  his 
liability  was  to  Campbell. 

If  the  court  below  were  right,  then  Campbell  could  not  have 
called  on  Colhoun  to  pay  till  he  had  paid  his  full  half,  which,  as  the 
principal  was  not  all  to  be  paid  for  seventeen  years,  Campbell  could 
not  have  recourse  to  Colhoun  until  that  time.  This  view  is  incon- 
sistent with  the  letters  of  Colhoun  and  the  nature  of  the  trans- 
action. He  recognised  his  liability  to  pay  his  portion  of  the  money 
as  the  contract  progressed. 

But  suppose  one-half  of  the  purchase-money  to  have  been  paid, 
and  the  college  had  taken  back  but  half  the  land,  Colhoun  could 
not  recover  any  part  of  the  land,  because  the  remedy  must  be  recip- 
rocal ;  and  if  Campbell  cannot  sue  when  he  has  paid  but  the  one- 
half  of  the  purchase-money,  Colhoun  could  not,  in  the  case  sup- 
posed, recover  any  portion  of  the  land.  Here  the  contract  with 
the  college  was  rescinded,  and  the  liabilities  of  the  parties  to  each 
other  for  money  paid  on  the  contract,  while  it  subsisted,  attached. 

In  the  case  of  co-sureties,  the  one  can  only  recover  for  what  he 
pays  beyond  his  proportion,  because  if  the  payment  be  less,  the 
liability  of  the  co-surety  remains  ;  but  if  the  principal  contract  is 
at  an  end,  then  the  surety  can  call  on  his  co-surety  for  contribution, 
although  he  has  paid  less  than  his  proportion  of  the  entire  sum  of 
the  contract. 

Cr.  Chambers  and  McCulloh,  for  the  defendants  in  error. — 1. 
The  case  on  the  part  of  the  plaintiffs  was  exceedingly  obscure.  The 
precise  terms  and  nature  of  the  contract  upon  which  they  relied  did 
not  appear.  They  inferred  its  existence  by  inference  from  the 
expressions  used  in  letters  prior  to  the  year  1814.  The  defend- 
ants admitting  that  a  contract  of  some  sort,  in  reference  to  these 
college  lands,  had  once  existed,  relied  on  many  circumstances  to 
establish  the  fact  that  it  had  been  abandoned.  The  letters,  dated 
after  that  period,  from  Mr.  Campbell  to  Mr.  Colhoun,  proved  that 
a  correspondence  had  been  continued  between  them,  and  that  Mr. 
Campbell  did  not  in  it  refer  to  this  contract  and  insist  on  the 
liability  of  Mr.  Colhoun  to  him,  although  the  contract  then  became 
more  interesting,  as  the  rate  of  interest  then  increased,  and  Mr. 
Campbell  after  that  time  became  embarrassed.  In  a  case  of  circum- 
stances, which,  on  the  part  of  the  plaintiff,  as  well  on  the  part 
of  the  defendant  this  was,  the  existence  of  this  correspondence, 
and  the  silence  of  Mr.  Campbell,  as  regards  the  contract,  were 
powerful  circumstances  to  show  that  the  contract  no  longer  sub- 
sisted. But  if  these  letters  proved  any  thing,  however  slight,  in 
reference  to  the  defence,  it  was  proper  to  permit  them  to  go  to  the 


144  SUPREME  COURT  {Chambersburg 

[Brady  v.  Colhoun.] 

jury,  particularly  as  both  parties  were  dead,  and  the  transaction 
involved  was  an  ancient  one.  It  was  for  the  jury  to  say  if  any 
letters  had  been  withheld. 

2.  The  jury  gave  a  general  verdict  for  the  defendants,  which 
could  only  be  on  the  ground  that  the  contract  alleged  had  been 
rescinded. 

And  if  the  court  did  err  in  their  charge  to  the  jury,  on  this 
point,  it  was  without  any  prejudice  to  the  plaintiff,  as  the  jury 
decided  on  another  ground. 

This  is  not  the  case  where  the  court  cannot  ascertain  the  point 
upon  which  the  verdict  was  given  ;  here  it  may  be  readily  separated 
and  distinctly  ascertained. 

The  nature  of  the  contract  was  wholly  a  matter  of  conjecture. 

If  it  were  between  Campbell  and  Colhoun,  after  Campbell 
bought,  it  was  a  sale  to  Colhoun  by  Campbell,  and  should  have 
been  declared  upon  by  the  plaintiff  as  such.  And  in  case  the  land 
had  been  lost  by  the  default  of  Colhoun,  if  Campbell  had  paid  his 
full  proportion  of  the  purchase-money,  his  remedy  would  have  been 
on  the  specific  contract,  and  a  general  action  of  assumpsit  for  money 
paid  to  the  use  of  Colhoun,  is  not  the  remedy. 

The  action  here  is  founded  on  the  idea  that  the  purchase  had 
been  made  by  Campbell  for  both. 

This  difficulty  as  to  the  nature  of  the  contract  lays  at  the  door 
of  the  plaintiff,  who  lay  by  so  long  without  attempting  to  enforce 
any  liability  on  the  defendant,  and  although  as  respects  a  creditor 
it  is  enough  to  know  and  establish  a  partnership  by  reputation,  yet 
as  between  the  parties,  on  a  question  of  liability,  one  partner  must 
establish  the  contract  distinctly. 

The  charge  of  the  court  below  was.  that  the  plaintiff  might  call 
on  the  defendant  for  contribution  for  a  payment  of  more  than  his 
proportion  of  the  interest. 

This  would  stop  in  1813,  when  the  principal  was  due ;  and  any 
payment  by  the  plaintiff  after  that  was  less  than  his  proportion  of 
principal  and  interest.  This  he  was  bound  to  pay,  and  he  could 
therefore  cast  no  liability  on  the  defendant  by  paying  this. 

As  between  partners  and  cosureties  the  law  is  well  settled.  One 
partner  or  surety  cannot  sustain  an  action  against  his  copartner  or 
co-surety  for  the  payment  of  his  proportion  of  the  debt.  It  is  for 
the  excess  beyond  this  only  that  a  right  of  action  exists :  Gow 
113-14;  1  Maddox  Ch.  191 ;  Ex  parte  Crisp,  1  Atk.  134-5;  Sow- 
yer  r.  Lyon,  10  Johns.  R.  32. 

But  here  the  contract  was  not  rescinded  by  the  recoveries  in  the 
ejectments  instituted  by  the  college,  nor  are  the  defendants  affected 
by  any  negotiation  with  the  college,  which  is  without  their  privity. 
The  vendor,  who  obtains  possession  by  ejectment  for  default  of  his 
vendee,  does  not  hold  as  of  his  former  estate,  nor  is  the  contract 
rescinded  by  such  recovery  :  Youst  v.  Martin,  3  S.  &  II.  432 ;  Mar- 


Oct.  1829.]  OF  PENNSYLVANIA.  145 

[Brady  r.  Colhoun.] 

lin  v.  "VVillink,  7  Id.  297.  The  vendor  holds  possession  as  a  security 
in  such  case,  and  as  to  the  vendee,  chancery  relieves  against  the 
lapse  of  time,  especially  where  a  large  part  of  the  purchase-money 
has  been  paid.  The  question  as  to  what  time  the  vendee  shall  be 
allowed,  after  the  vendor  has  taken  possession  on  his  default,  to 
redeem,  has  not  been  settled  ;  but  it  is  clear  that  in  such  case  the 
contract  is  not  rescinded. 

Crawford,  in  reply. — The  contract  between  Colhoun  and  Camp- 
bell, upon  which  we  based  the  liability  of  the  former  was  involved 
in  no  doubt  or  obscurity.  It  was  fully  made  out  by  the  letters  of 
Mr.  Colhoun,  which  the  plaintiffs  gave  in  evidence,  and  which,  con- 
taining admissions  against  his  interest,  are  the  strongest  possible 
evidence  on  this  point. 

The  letters,  which  did  not  refer  to  this  transaction,  but  to  the 
affairs  of  the  family,  ought  not  to  have  been  received  in  evidence. 

The  presumption  of  abandonment  of  the  contract  would  have 
been  as  well  sustained  by  the  fact  of  no  letters  being  given  in  evi- 
dence, as  by  these  letters.'"  It  is  because  they  contain  no  evidence 
that  they  were  received.  The  law  of  evidence  would  not  permit 
conversation  between  parties,  in  which  nothing  was  said  about  the 
transaction  in  issue  to  be  proved. 

The  evidence  here  was  of  no  better  character,  and  their  introduc- 
tion brought  before  the  jury  little  extrinsic  circumstances  which 
ought  not  to  have  reached  the  jury  at  all. 

It  is  not  only  liable  to  these  objections,  but  those  already  urged 
on  account  of  the  danger  of  tolerating  this  kind  of  evidence. 

2.  It  is  against  all  equity  that  Campbell,  in  a  case  of  this  sort, 
should  not  have  a  right  to  recover  a  proportion  of  any  sum  which 
he  had  paid.  If  it  be  conceded  that  he  was  entitled  to  recover  for 
interest  paid,  as  the  court  below  charged  the  jury,  on  the  same  prin- 
ciple, he  should  be  entitled  for  his  payment  of  principal. 

Campbell  was  the  only  party  known  to  the  college  in  the  con- 
tract, so  that  one-half  of  every  dollar  paid  by  him  was  for  the  use 
of  Colhoun,  who  was  thus  unknown  to  the  vendor. 

Where  one  of  two  sureties  pays  the  one-third  of  the  whole  debt, 
and  the  principal  pays  the  balance,  the  surety  could  most  certainly 
call  on  his  cosurety  for  contribution.  So  if  one  of  two  partners, 
pays  one-fourth  of  a  debt  due  by  the  firm,  upon  a  compromise  of 
the  whole  demand,  it  is  equally  clear  that  he  may  have  contribution 
from  his  copartner.  It  is  only  where  the  liability  remains  that  the 
surety  or  partner  cannot  be  reimbursed  for  any  payment  less  than 
the  half  of  the  debt ;  and  when  the  books  speak  of  half  of  the 
whole  debt,  they  mean  the  half  of  the  whole  debt  dcnmn<l<tf>l<'.  The 
case  in  10  Johns,  went  upon  a  different  principle.  There  the  liability 
remained,  and  the  defendant's  land  was  subjected  to  it.  Now.  by 
the  recovery  of  the  land  in  ejectment  bv  the  college,  all  the  right 

1  P.  &  V\".— 10 


146  SUPREME  COURT  [Ckambenlurg 

[Brady  v.  Colhoun.] 

of  the  college  to  call  on  Campbell  or  Colhoun  is  gone ;  although  it 
be  true  that  the  vendor  in  such  case  holds  as  a  trustee  for  the  ven- 
dee, who  may  redeem. 

It  is  impossible  to  ascertain  on  what  point  the  jury  found  or  that 
they  were  influenced  in  their  finding  by  the  charge  of  the  court  on 
this  point.  When  the  court  told  the  jury  that  as  t9  the  principal 
we  had  no  right  to  recover,  it  may  have  induced  the  jury  to  believe 
that  we  had  no  right  to  recover  on  account  of  interest ;  and  the 
court  will  not  sustain  the  judgment  upon  a  conjecture  that  the  jury 
found  on  another  point,  because  by  possibility  they  may  have  so 
found. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  evidence  to  charge  the  defendants  consisted 
of  a  series  of  letters  written  by  Colhoun,  from  which  it  would  seem 
he  had  been  let  into  some  sort  of  participation  in  Campbell's  pur- 
chase. All  allusion  to  the  subject,  however,  having  been  discon- 
tinued on  the  part  of  Colhoun  for  a  period  of  thirteen  years,  the 
defendants  offered  as  additional  evidence  of  the  rescission  of  their 
agreement,  six  letters  written  by  Campbell  in  a  period  of  as  many 
years,  in  which,  also,  there  is  no  allusion  to  the  subject,  although  it 
had  at  one  time  been  a  leading  topic  of  their  correspondence.  We 
cannot  admit  that  these  letters  were  irrelevant,  because  the  writer 
was  silent  on  the  subject  of  the  agreement;  on  the  contrary,  they 
were  relevant  for  that  very  reason.  In  connection  with  the  lapse 
of  thirteen  years  of  silence  on  the  part  of  Colhoun,  the  silence  of 
Campbell  for  at  least  six,  was  a  powerful  circumstance  ;  and  were 
the  objection  of  irrelevancy  to  prevail  here,  it  must  necessarily  pre- 
vent a  party,  under  any  circumstances,  from  being  affected  by 
silence,  which,  though  often  more  significant  than  words,  has  no 
positive  allusion  to  anything.  Neither  do  we  admit  the  force 
attempted  to  be  given  to  the  objection  that  the  defendants  may  have 
suppressed  all  but  such  parts  of  the  correspondence  as  suited  their 
purpose.  As  to  that  the  plaintiffs  had  a  right  to  examine  them  on 
oath ;  and  this,  I  understand,  though  tendered,  was  declined. 

In  respect  to  the  charge,  it  seems  to  me  that  both  parties  put 
to  the  court  as  a  conclusion  of  law,  what  was  properly  a  matter  for 
the  jury — the  supposed  liability  of  the  defendants  to  contribution 
for  the  payments  of  Campbell  whether  more  or  less  than  his  propor- 
tional part.  It  is  obvious  that  this  depended,  in  the  first  instance, 
on  whether  the  parties  had  agreed  to  apportion  the  profit  or  loss ; 
which  is  of  the  essence  of  partn^rx/iip.  Although  it  be  by  no 
means  common,  there  may  be  a  partnership  to  trade  in  land  ;  and 
it  may,  as  in  any  other  case,  be  limited  to  purchasing  only,  the 
profit  or  loss  being  divisible  as  stock  ;  but  this  relation  does  not 
necessarily  or  even  naturally,  arise  from  the  bare  circumstance  of 
the  parties  having  purchased  jointly.  The  existence  of  partner- 


Oct.  1829.]  OF  PENNSYLVANIA.  147 

[Brady  v.  Oolhoun.] 

ship  as  deducible  from  facts  and  circumstances,  is  not  for  the  court 
but  the  jury ;  and  in  submitting  propositions  supposed  to  result 
from  the  evidence  as  conclusions  of  law,  the  plaintiffs  abandoned 
the  notion  of  a  partnership  having  existed  in  fact,  and  went  to  the 
court  on  the  supposed  liability  of  the  defendants  as  representing  a 
joint  purchaser.  Then,  to  put  the  case  as  favorably  to  them  in 
point  of  fact  as  it  will  bear,  we  must  suppose  the  parties  had  agreed 
to  stand,  as  between  themselves,  in  the  relation  of  joint  purchasers, 
each  separately  paying  his  share  of  the  price,  without  being  bound 
to  bear  an  equal  share  of  the  loss ;  and  in  this  aspect  it  is  clear, 
they  would  not  be  entitled  to  the  remedies,  nor  subject  to  the  re- 
sponsibilities of  partners.  The  purchase  was  at  a  credit  of  eight 
years,  with  interest,  at  three  per  cent.;  after  which,  the  principal 
was  to  be  paid  at  three,  six  and  nine  years,  reserving  six  per  cent, 
on  unpaid  balances.  Colhoun  was  taken  into  the  purchase  as  if,  it 
may  be  supposed,  he  had  been  originally  concerned ;  and  if  Camp- 
bell paid,  as  there  is  reason  to  believe  he  did,  all  the  interest  as  it 
became  due,  he  paid  a  moiety  of  it  to  the  use  of  Colhoun,  for  which 
a  right  of  action  instantly  accrued,  but  which  was  subsequently 
barred  by  the  Statute  of  Limitations.  Laying  partnership  out  of 
view,  as  the  parties  themselves  have  thought  fit  to  do,  there  was  no 
agreement  for  advances,  nor  anything  which  looked  to  the  settle- 
ment of  a  final  account.  It  even  was  not  part  of  the  agreement 
that  they  should  contribute  to  a  common  fund.  The  advances  of 
Campbell  were  in  pursuance  of  his  original  liability  for  the  whole, 
and  they  became  demandable,  not  by  virtue  of  any  previous  con- 
tract with  Colhoun,  but  the  contract  which  arose  from  the  fact  of 
payment,  by  implication  of  law.  There  was  nothing  to  prevent 
Campbell  from  maintaining  an  action  for  a  moiety  of  each  payment 
the  instant  it  was  made ;  and  I  therefore  cannot  concur  in  the 
opinion  expressed  at  the  trial,  that  the  statute  was  not  a  bar.  The 
same  obstacle  would  present  itself  to  a  recovery  of  the  principal, 
were  it  established  that  Campbell  paid  more  than  his  share.  He 
made  various  payments  and  the  jury  were  instructed  that  he  had 
paid  nothing  to  Colhoun's  use,  it  being  taken  for  granted  that  he 
had  at  no  time  paid  more  than  his  proportion  of  the  instalment  last 
due.  Now  the  fact  would  depend  on  the  manner  of  the  appropria- 
tion, it  being  abundantly  clear  that  a  debtor  may  apply  his  pay- 
ments to  any  particular  debt  or  account,  at  his  election :  and  had 
the  plaintiffs  desired  the  court  to  put  the  cause  to  the  jury  on  the 
fact  of  Campbell's  having  paid  any  particular  instalment  in  full,  it 
would  have  been  error  to  refuse  it.  They,  however,  thought  fit  to 
put  the  whole  to  the  court  as  a  matter  of  law,  and  it  seems  to  me, 
therefore,  that  the  principle  assumed  being  right,  we  cannot  say 
there  was  error  in  the  application  of  it. 

There  is,  however,  another  ingredient  beside  the  Statute  of  Limi- 
tations, by  which  a  defect  in  this  part  of  the  case  would  be  cured. 


148  SUPREME  COURT  \_Chambersburg 

[Brady  v.  Colhoun.] 

It  appears  from  the  whole  matter,  that  the  jury  went  on  a  distinct 
ground  of  fact,  the  rescission  of  the  contract.  On  no  other  ground 
could  a  verdict  have  passed  for  the  defendants,  as  any  application 
of  the  rule  laid  down,  would  have  produced  a  balance  to  the 
plaintiffs.  The  Statute  of  Limitations  being  put  out  of  the  way, 
(whether  erroneously  or  not,  is  at  present  immaterial),  the  plaintiffs 
would  have  clearly  been  entitled  to  a  moiety  of  the  moneys  paid  to 
keep  down  the  interest.  It  being  clear  then,  that  the  jury  found  on 
a  distinct  question  of  fact,  Avhich  was  decisive  of  the  cause,  it  would 
he  oppressive  to  reverse  for  a  misdirection  in  law,  if  such,  there 
were,  which  did  not  relate  to  it.  A  court  of  error  invariably  dis- 
regards whatever  has  not  contributed  to  the  event ;  so  that  had 
there  been  misdirection  in  other  parts  of  the  case,  it  would  have 
been  insufficient  to  avoid  the  consequences  of  the  verdict. 

Judgment  affirmed. 

Referred  to.  7  Barr  171  ;  10  Id.  168;  13  Smith  341 ;  17  Id.  299. 
Followed,  infra,  370 ;  6  Wb.  302 ;  5  H.  523. 


Moore  against  McBride. 


IN    ERROR. 


In  un  action  commenced  by  capias,  a  short  minute  of  a  recognisance  of 
special  hail,  taken  by  the  clork  of  a  prothonotary,  in  this  form,  "  K.  M.  held 
in  §2<K)  cutjn.  c'iram  £.  L.  for  J.  II.  Proth'y."  Held,  to  be  sufficient. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Cumberland 
county. 

This  was  a  scire  facias  upon  a  recognisance  of  special  bail,  to 
which  the  defendant  pleaded  "  nul  tiel  record"  and  the  court 
below  gave  judgment  for  the  defendant,  in  which  the  plaintiff  now 
alleged  error. 

The  following  is  the  entry  of  the  recognisance  on  which  this 
Bcire  facias  was  issued : 

John  Moore  "j  No.  28,  August  Term  1824. 

v.  >        Capias  debt  on  note  under  seal  not  ex- 

James  A.  Mitchell.     J  ceeding  3200.     Bail  in  3200. 

Robert  McBridc  held  in  3200  coyn.  coram  Edward  Leonard,  for 
John  P.  Hclfcnstcin,  Proth'y,  5th  May  1824.  C.  C.  and  special 
bail  entered.  (Sh'ff  32.12.) 

In  this  suit  the  plaintiff  obtained  judgment  upon  report  of  arbi- 
trators for  $167.65,  to  recover  which,  after  the  proper  executions, 
this  scire  facias  was  issued. 

Penrose,  for  the  plaintiff  in  error. — A  short  minute  of  a  recogni- 
sance is  sufficient,  provided  it  indicate  the  nature  of  the  recognisance, 


Oct.  1829.]  OF  PENNSYLVANIA.  149 

[Moore  ».  McBride.] 

so  that  the  officer  may  make  it  out  at  large  when  it  is  required  :  Com- 
monwealth v.  Emery,  2  Binn.  431.  A  short  note  such  as  "A.  B. 
m  40£.  to  appear,  £c.,"  was  held  to  be  sufficient:  4  Burns's  Just. 
84, 18th  ed.  In  this  case  there  could  be  no  other  recognisance  but 
that  of  special  bail. 

This  is  abundantly  indicated  by  the  docket  entries ;  and  if  neces- 
sary, the  court  would  consider  the  words  "  C.  C.  and  special  bail," 
alleged  to  be  the  return  of  the  sheriff,  as  part  of  the  recognisance 
in  order  to  sustain  the  proceeding.  He  also  cited  Welch  et  al.  v. 
Vanbebber  et  al.,  4  Yeates  509,  and  1  Barnes  4. 

Alexander,  for  the  defendant  in  error. — It  is  admitted  that  a 
short  minute  of  a  recognisance  is  sufficient,  provided  it  show  the 
amount  and  the  condition  upon  which  the  recognisor  is  bound. 

But  this  recognisance  is  without  the  most  important  feature  of  a 
recognisance,  a  condition ;  nor  is  it  at  all  indicated  by  any  part  of 
the  minute.  It  does  not  appear  whether  the  undertaking  was  abso- 
lute or  conditional ;  and  it  follows  that  there  is  nothing  from  which 
the  officer  can  make  it  into  form. 

The  scire  facias  set  forth  a  recognisance  of  special  bail ;  this  min- 
ute does  not  show  such  a  recognisance,  for  it  does  not  indicate  in 
any  way  the  condition  of  such  recognisance. 

The  Commonwealth  v.  Emery,  cited  on  the  other  side,  is  an 
authority  for  us.  It  is  there  decided  that  the  short  minute  of  the 
recognisance  should  substantially  show  the  condition  of  the  recogni- 
sance. 

The  words  "C.  C.  and  special  bail,"  are  manifestly  the  return 
of  the  sheriff,  and  form  no  part  of  the  recognisance. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — We  readily  forget  that  we  once  learned,  and  nothing 
is  sooner  forgotten  than  forms  of  proceedings  in  foreign  courts, 
which  we  have  scarcely  learned,  because  we  supposed  them  not  to 
bo  important  here.  Every  lawyer  has  looked  into  Compton  or  Scl- 
lon,  or  some  of  those  books  of  practice  which  so  properly  gave  the 
precise  forms  of  entry  in  the  several  stages  of  the  cause.  Tidd's 
Practice,  in  two  volumes,  in  which  we  have  no  forms,  has,  in  a  great 
degree,  superseded  the  former  authors.  In  many  respects  the  short 
minutes,  in  this  state,  are  not  made  precisely  in  the  words  used  in 
England,  or  in  other  states.  1  do  not  admit,  however,  that  in  this 
respect  the  difference  is  against  us.  In  the  science  of  pleading  we 
are,  perhaps,  generally  much  inferior;  and  our  short  notes  of  pleas, 
replication  and  issues,  have  brought  obloquy  on  our  practice  :  and 
that  far  beyond  what  the  truth  required.  The  worst  of  it  is.  that 
this  reproach  in  some  mouths  takes  a  wider  range,  and  extends  to 
everything  good  or  bad,  and  this  pretty  much  in  proportion  as  the 
censurer  is  unqualified  to  judge.  I  speak  generally,  with  no  refer- 


150  SUPREME  COURT  [Cliamberslurg 

[Moore  v.  McBride.] 

ence  to  this  cause,  for  there  has  been  less  occasion  for  the  observa- 
tion here  than  we  meet  every  day. 

For  the  benefit  of  those  who  have  forgotten  the  forms  in  other 
countries,  I  will  transcribe  from  Sellon  the  form  of  entering  special 
bail  in  the  King's  Bench  and  Common  Pleas  in  England :  1  Sel- 
lon's  Practice  139. 

In   the   King's   Bench   it   is  In  the  Common  Pleas  the  fila- 

taken  before  the  judge's  clerk,  azer  attends  with  his  book,  and 

although  when  filed  it  is  a  rec-  names  of  parties,  &c.,  and  a  short 

ord.     After  the  words  of  the  re-  entry  is  made  to  be  drawn  into 

cognisance  are  repeated  to  the  form.     If  the  filazer  cannot  at- 

bail,  and  he  agrees   to  become  tend,  a  bail-piece  is  made  in  this 

bound,  the  bail-piece  is  made  out  form : 
in  this  form : 

In  the  Common  Pleas. 

Easter  Term,  in  the  32d  year  of  the  Easter  Term,  3lM  of  George  III. 
reign  of  George  III.  Stormant  and 

Way.  Middlesex,  to  wit,  capias    against 

Middlesex, )      A.  B.  is  delivered  to  A.  B.,  late  of  W.,  yeoman,  at  the  suit 

to  wit,     )  bail  on  a  cepi  corpus,  to  of  C.  D.,  for  2001.,  upon  promises  re- 

C.    D.    of  C.  of  London,  turnable,  &c. 

mercer,  and  E.  F.  of  N.  Affidavit  for 

London,  hatter.  100J. 

J.  S.  attor-  Taken  and )      Bail    are  E.  F.  of  C. 

uey.              At  the  suit  of  acknow-  >  London,  hatter,  and  G. 

Sworn  to                  J.  K.  lodged.    )  II.  of  London,  mercer. 

1QOL  Defendant  bound  in    200Z.     Each 

4th  May  1792.  of  bail  in  50/. 

If  the  bail  be  not  excepted  to,  this  bail-piece  is  carried  to  the 
proper  office,  in  the  respective  courts,  no  other  entry  as  bail,  or  of 
the  terms  of  the  recognisance,  is  ever  made.  It  is  drawn  into  form 
if  the  record  be  wanted,  or  declared  on,  as  if  entered  at  full  length 
if  necessary  to  sue  it. 

In  every  country  and  age  where  law  is  practised,  abbreviations, 
short  notes,  and  technical  words  are  used  in  cases  of  daily  or  hourly 
occurrence,  to  save  labor,  "When  properly  understood,  they  answer 
every  purpose  of  setting  everything  out  at  large.  These  short  notes 
or  abbreviations  vary  in  different  states ;  nay,  here  in  different 
courts :  but  if  admitted  at  all,  one  is  as  good  as  another,  provided 
it  indicates  with  certainty  what  was  done.  Here  there  was  but  one 
kind  of  bail  known  to  the  law,  in  that  stage  of  the  cause,  and  but 
one  form  of  recognisance  which  could  be  taken.  It  cannot  be  pre- 
tended that  any  difference  of  opinion  can  exist  as  to  what  the  bail 
engaged.  I'he  special  bail  is  named,  and  the  sum  in  which  he  is 
bound ;  and  this  is  subjoined  to  the  statement  of  the  suit  on  the 
the  docket,  the  date  is  added,  and  the  name  of  the  prothonotary's 


Oct.  1829.]  OF  PENNSYLVANIA.  151 

[Moore  ».  McBride.] 

clerk ;  it  is  impossible  that  there  can  be  any  mistake  as  to  any  one 
matter  essential  in  the  case. 

The  form  used  in  this  case  is  at  least  as  certain  as  that  used  in 
England ;  this  is  said  for  those  who  think  nothing  right  but  what  is 
English ;  it  has  every  requisite.  Once  admit  that  a  short  note  of 
the  entry  of  the  bail  is  good,  and  that  used  here  is  as  good  as  any 
other ;  and  any  other,  indicating  all  that  this  does,  is  as  good  as 
this. 

Something  was  said  about  its  being  taken  by  the  prothonotary's 
clerk,  and  not  by  the  prothonotary  himself.  This  court  has  given 
an  opinion  on  that  more  than  once,  lately.  I  would  just  observe 
that  in  England,  the  recognisance,  when  filed,  is  a  lien  on  land,  as 
much  as  a  judgment,  and  always  must  be  taken  before  a  judge;  in 
point  of  fact  it  is  always  taken  by  the  judge's  clerk. 

Judgment  reversed,  and  judgment  entered  for  the  plaintiff  in 
error. 

Followed,  6  Wh.  361 ;  7  H.  359. 


152  SUPREME  COURT  [Chambersburg 


Himes  against  Jacobs  et  al. 


Where  suit  is  brought  against  the  personal  representatives  of  a  deceased 
debtor,  with  notice  to  the  tenants  in  possession  01  the  land  upon  which  the 
debt  is  alleged  to  be  a  lien,  and  the  tenants  appear  and  make  defence,  they 
are  concluded  by  the  verdict  and  judgment;  although  they  may  not  in  fact 
have  put  in  issue  the  question  of  lien  ;  and  in  an  ejectment  brought  by  a 
sheriff's  vendee  under  that  judgment  against  such  terre-tenants,  they  will 
not  be  permitted  to  controvert  the  lien  of  such  debt. 

It  is  a  rule  of  pleading  that  whatever  is  not  contested  at  the  proper  time,  is 
conceded. 

In  Pennsylvania,  whore  lands  are  assets  for  the  payment  of  debts,  it  is 
most  just  to  afford  the  terre-tenant,  who  is  the  party  to  be  affected,  an  oppor- 
tunity to  contest  the  debt,  and  the  plaintiff  may  do  so. 

Even  where  the  terre-tenants  have  been  called  upon  prematurely,  still,  if 
they  avail  themselves  of  the  occasion,  and  have  a  fair  opportunity  to  make 
a  full  defence,  they  are  concluded. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Adams  county. 

The  case  was  an  action  of  ejectment,  brought  by  the  plaintiff  in 
error,  who  was  plaintiff  below,  to  recover  a  tract  of  land  ;  and  both 
plaintiff  and  defendant  made  title  under  John  Ross,  deceased,  in 
whom  it  was  admitted  it  was  originally  vested. 

The  plaintiff  claimed  by  virtue  of  a  sheriff's  deed,  which  was 
made  to  him  upon  a  judgment  obtained  at  the  suit  of  Isaac  Boyers 
and  Abraham  Boyers,  against  Sample  Ross  and  Samuel  Ross, 
executors  of  John  Ross,  deceased,  with  notice  to  the  tenants  in 
possession. 

The  proceedings  in  that  suit  were  material  to  his  title,  and  so  far 
as  they  are  so,  are  here  given  at  length. 

DOCKET   ENTRY. 

Isaac  Boyer  and  Abraham  Boyer,   ^  No.  135,  April  term,  1823. 

v.  Summons  debt  1510A   5s. 

Sample  Ross  and  Samuel  Ross,  exe-  Sheriff    Gilbert    returns 

cutors  of  the  testament  and   last 

will  of  John  Ross,  deceased,  witli 

notice     to     Anthony     Deardorff, 

David  Ross,  and  others,  tenants 

in  possession  of  the  real  estate  of 

said  John  Ross,  deceased. 

Stevens  and  Siveney,  for  plaintiffs. 
McConoughy,  for  terre-tenants. 


served  on  Anthony  Dear- 
•  dorff,  David  Ross,  Sic.  Narr. 
filed.  Defendant  pleads  pay- 
ment, with  leave,  <S:c.  Re- 
plication '/></«  ftulvit.  Issue, 


Oct.  1829.]  OF  PENNSYLVANIA.  153 

[Himcs  v.  Jacobs.] 

April  28th  1826,  Samuel  Ross,  one  of  the  defendants,  agrees 
that  judgment  be  entered  against  the  executors  and  devisees  in  this 
suit.  Judgment  according  to  agreement. 

And  now,  28th  August  1826,  verdict  for  the  plaintiff  for  1510J. 
5s.,  to  be  released  on  payment  of  $371.54.  Judgment. 

Declaration,  filed  April  term  1823 : 

ADAMS  COUNTY,  ss. — Sample  Ross  and  Samuel  Ross,  both  late 
of  the  county  aforesaid,  yeomen,  executors  of  the  last  will  and  tes- 
tament of  John  Ross,  late  of  the  county  aforesaid,  deceased,  were 
summoned  to  answer  Abraham  Boyer  and  Isaac  Boyer  of  a  plea 
that  they  render  to  them  the  sum  of  1510?.  5s.,  equal  to  $4027.33, 
lawful  money  of  Pennsylvania,  which  to  them  they  owe  and  unjustly 
detain,  &c. 

And  whereupon  the  said  Abraham  and  Isaac,  by  George  Sweney, 
their  attorney,  complain  that,  whereas  the  said  John  Ross,  in  his 
lifetime,  that  is  to  say,  on  the  15th  day  of  June,  in  the  year  of  our 
Lord  1790,  by  his  certain  writing  obligatory,  to  the  court  here 
shown,  acknowledged  himself  to  be  bound  unto  the  said  Abraham 
and  Isaac,  in  the  aforesaid  sum  of  1510?.  5s.,  to  be  paid  to  the  said 
Abraham  and  Isaac,  when  he,  the  said  John,  should  be  thereunto 
afterwards  requested ;  and  whereas  the  said  John,  at  and  immedi- 
ately before  the  signing  and  sealing  of  the  aforesaid  writing  obliga- 
tory, was  seised  in  his  demesne  as  of  fee  of  and  in  a  certain  tract 
of  land,  situated  in  Franklin  township,  in  the  then  county  of  York, 
now  Adams,  and  state  of  Pennsylvania,  adjoining  lands  of  William 
Shakely  and  Robert  Shakcly,  the  heirs  of  Samuel  Russell,  deceased, 
the  heirs  of  Moses  Jenkins,  deceased,  and  others.  And  whereas 
the  said  John  afterwards,  to  wit,  on  the  6th  day  of  January,  in  the 
year  of  our  Lord  1805,  made  his  last  will  and  testament  in  writing, 
and  constituted  the  said  Sample  Ross  and  Samuel  Ross  the  exec- 
utors thereof;  which  said  last  will  and  testament  was  duly  proved 
and  recorded  according  to  law ;  by  which  said  last  will  and  testa- 
ment the  said  John  Ross  devised  the  tract  of  land  aforesaid  to  the 
said  Sample  Ross  and  Samuel  Ross,  to  be  sold,  and  the  proceeds 
thereof  to  be  applied  to  the  payment  of  his  debts,  and  certain  lega- 
cies in  the  said  will  and  testament  specified,  and  died  seised  thereof, 
which  said  tract  of  land  was  not  sold  by  the  said  Sample  Ross  and 
Samuel  Ross,  agreeably  to  the  provisions  of  the  said  last  will  and 
testament,  but  still  remains  subject  to  the  lien  of  the  debts  of  the 
said  John  Ross,  and  subject  to  the  payment  of  the  said  sum  of 
1510?.  5s.,  mentioned  in  the  aforesaid  writing  obligatory,  to  the 
said  Abraham  Boyer  and  Isaac  Boyer.  Nevertheless,  the  said  John 
Ross,  in  his  lifetime,  and  the  said  Sample  Ross  and  Samuel  Ross, 
since  the  death  of  the  said  John  Ross,  although  often  requested, 
have  not  paid  the  aforesaid  sum  of  151 0/.  5s.  to  the  said  Abraham 
Boyer  and  Isaac  Boyer,  but  have  hitherto  refused,  and  still  do 
refuse  to  pay  the  same  to  them,  to  the  damage  of  the  said  Abra- 


154  SUPREME  COURT  [Chambentwrg 

[Himes  v.  Jacobs.] 

ham  Boyer  and  Isaac  Boyer  35000,  and  therefore  they  bring  this 
suit,  &c. 

Upon  the  judgment  so  obtained  in  this  action,  the  land  in  ques- 
tion was  levied  and  sold  to  the  plaintiff;  and  on  the  26th  May 
1827  a  sheriff's  deed  was  made  to  him. 

The  defendant,  Anthony  Deardorff,  claimed  the  title  under  a 
judgment  obtained  at  the  suit  of  Tobias  Kepner,  guardian  of  Bit- 
tinger,  against  Samuel  Ross  and  another,  on  the  10th  of  April  1820, 
upon  which  the  land  was  sold,  on  the  25th  of  November  1822,  to 
the  defendant ;  and  on  the  16th  January  1823  a  sheriff's  deed  was 
made  to  him. 

Samuel  Ross  was  one  of  the  five  sons  and  daughters  of  John 
Ross,  deceased,  and  one  of  the  executors  named  in  his  will. 

In  the  will  of  John  Ross,  which  was  proved  on  the  6th  April 
1805,  he  directed  that  his  real  estate,  of  which  the  land  in  dispute 
was  a  part,  should  be  sold  by  his  executors ;  that  they  should  pay 
his  debts,  and  distribute  the  residue  of  the  proceeds  among  his 
children  equally. 

On  the  26th  of  February  1813,  William  Baxter,  who  was  mar- 
ried to  a  daughter  of  John  Ross,  deceased,  and  his  wife,  and  John 
Ross,  the  son,  released  to  Samuel  Ross  their  respective  interests 
under  the  will. 

In  the  same  year,  David  Ross  and  Samuel  made  a  division  of 
the  land  which  had  been  of  John  Ross ;  and  David  agreed  to  take 
the  portion  divided  off  to  him,  on  account  of  his  interest  under  his 
father's  will.  After  the  division,  which  was  by  parol  and  in  pais, 
David  built  a  tenant-house  on  his  part,  and  enjoyed  it  separately. 

To  show  that  the  interest  of  Sample  Ross,  the  remaining  legatee 
under  the  will  of  John  Ross,  had  been  also  vested  in  Samuel  Ross, 
the  defendant  gave  in  evidence  a  judgment  which  had  been  ob- 
tained against  Sample  Ross,  on  the  15th  of  August  1808,  at  the 
suit  of  W.  Hosack,  administrator  of  Brown  ;  and  a  levy,  arid  judi- 
cial sale  of  the  interest  of  Sample  in  the  land  of  his  father  to  Samuel 
Ross  ;  and  a  sheriff's  deed  of  the  same  to  Samuel,  dated  the  3d  day 
of  October  180(J.  Samuel  had  improved  the  land,  and  the  houses 
built  upon  it ;  and  expended  considerable  sums  of  money  in  these 
improvements,  after  he  obtained  the  releases  of  his  brothers  and 
sisters. 

In  answer  to  points  put  by  the  counsel  of  the  plaintiff,  the  court 
below  charged  the  jury,  that  by  the  Act  of  the  4th  April  1797, 
no  debt,  unless  secured  by  mortgage,  judgment,  recognisance,  or 
other  record,  shall  remain  a  lien  on  the  lands  of  decedents  for  a 
longer  period  than  seven  years  from  the  decease,  unless  action  be 
commenced  within  that  period ;  or,  if  such  debt  be  not  due  within 
seven  years,  unless  a  written  statement  of  the  debt  be  filed  of  record 
in  the  prothonotary's  office  within  such  period. 


Oct.  1829.]  OF  PENNSYLVANIA.  155 

[Himes  v.  Jacobs.] 

That  John  Ross  died  before  the  6th  of  April  1805,  and  that  no 
suit  was  brought  upon  the  bond  from  John  Ross  to  Isaac  and  Abra- 
ham Boyer,  or  any  description  of  it  filed  in*  the  prothonotary's  office, 
within  seven  years  after  the  death  of  John  Ross  ;  and  that  conse- 
quently as  against  a  bona  fide  purchaser,  which  Anthony  Deardorff 
was,  the  lien  of  that  debx  was  gone  before  suit  was  brought. 

And  that  Anthony  Deardorff  was  not  estopped  by  the  pleadings 
and  proceedings  in  the  suit,  which  was  brought  on  that  bond,  in 
1823,  from  denying  the  existence  of  that  lien,  and  controverting 
its  effect  in  this  action. 

The  errors  assigned  were  to  the  charge  of  the  court  on  these  two 
points. 

Penrose  and  Stevens,  for  the  plaintiff  in  error,  1st.  Contended 
that  under  the  will  of  John  Ross,  James  Ross  and  Sample  Ross, 
the  executors,  become  invested  with  an  estate  in  his  lands  devised 
in  trust  for  the  uses  of  the  will,  and  that  the  power  to  sell  never 
having  been  executed  by  them,  and  the  entire  title  never  having 
been  acquired  from  all  the  cestui  que  trusts  the  entire  estate  had 
never  been  so  vested  in  them  as  to  warrant  the  application  of  the 
limitation  of  the  Act  of  1797,  which  was  made  for  the  benefit  of 
the  bona  fide  purchaser.  Where  trustees  have  an  estate  vested  in 
them,  a  purchase  by  them  of  part  of  the  interest  of  cestui  que  trust 
does  not  vest  in  them  such  an  interest  in  the  trust  fund  as  that  a 
sale  on  a  judgment,  obtained  against  them,  would  transfer  the  title 
clear  of  the  trust. 

Here  one  of  the  trusts  of  the  will  was  the  payment  of  the  debts 
of  the  testator,  of  which  the  debt  under  which  the  plaintiff  claimed 
was  one.  To  have  the  effect  contended  for,  the  purchase  by  the 
trustee  must  be  of  the  entire  interest.  In  case  of  a  partial  pur- 
chase the  trust  remains,  and  the  purchaser  at  sheriff's  sale,  under 
the  judgment  against  the  trustee,  would  take  subject  to  the  trust. 

It  is  obvious  that  nothing  less  than  an  agreement  of  the  parties 
in  interest  could  extinguish  the  trust ;  a  partial  agreement  could  not 
have  this  effect. 

Here  the  lapse  of  time  did  not  run  against  the  trust,  and  Dear- 
dorff comes  in  with  full  notice.  He  claims  under  a  judgment  against 
Samuel  Ross ;  and  one  of  the  muniments  of  his  title  is  the  will  of 
John  Ross,  which  gave  him  notice  of  the  trust,  and  which  imposed 
upon  the  executors  the  duty  of  paying  the  debts  of  the  testator. 
The  title  which  Deardorff  bought  was  an  equitable  title,  and  he 
must  take  it  with  all  the  circumstances  of  the  equity ;  and  a  para- 
mount encumbrancer  is  not  defeated. 

Any  other  doctrine  would  establish  a  rambling  and  licenticQs 
equity,  to  depend  on  the  circumstance  of  each  case. 

The  judgment  against  Sample  Ross,  and  the  sale  upon  it  of  his 


156  SUPREME   COURT  [Chambersburg 

[Ilimes  r.  Jacobs.] 

interest  in  the  land    devised  to  Samuel  Ross,  vested  no  title  in 
Samuel. 

He  was  a  legatee  under  the  will  of  John  Ross,  and  took  no  inter- 
est in  the  land  upon  which  that  legacy  was  charged,  which  was  the 
subject  of  a  judicial  sale :  Allison,  Ex'r  of  Henderson,  v.  Wilson's 
Ex'rs,  13  S.  &  R.  330. 

2d.  But  Deardorff  has  had  his  day  of  grace,  and  it  has  gone  to 
judgment.  In  the  suit  brought  on  the  bond  of  Boyer  and  Boyer  he 
appeared  and  made  defence.  In  the  declaration  the  plaintiff  set 
forth  certain  facts,  among  them  those  which  constituted  alien.  The 
plaintiff  in  that  case  had  a  right  to  call  in  the  terre-tenants,  and 
save  the  expense  of  a  subsequent  investigation. 

It  is  not  competent  for  a  party  after  trial  and  judgment,  to  allege 
that  he  might  have  put  in  another  plea  which  would  have  an- 
swered his  purpose  better.  If  he  might  have  put  in  the  plea  that 
is  enough  ;  he  is  concluded  by  the  trial  and  judgment  as  to  every 
fact  alleged,  and  not  denied  by  him.  Nor  does  it  lay  in  the  mouth 
of  the  defendant  to  say,  that  there  was  no  trial  on  the  point,  as  to 
the  lien  of  the  debt,  alleged  by  the  plaintiffs  in  that  suit.  It  was 
a  matter  of  no  importance  to  the  terre-tenants  whether  the  debt 
was  due  by  John  Ross ;  the  lien  of  the  debt  on  their  land  was  the 
only  question  of  interest  to  them  :  1  Phil.  Ev.  140,  238,  243. 

In  ejectment  the  irregularity  of  the  proceedings  in  a  scire  facias 
sur  mortgage,  as  that  the  judgment  was  entered  on  one  nihil,  can- 
not be  inquired  into :  Allison  r.  Rankin,  7  S.  &  R.  2(59.  So  in  a 
scire  facias  against  an  heir  and  terre-tcnant,  what  might  have  been 
pleaded  is  concluded  by  the  verdict  and  judgment;  Coyle  et  al.  v. 
Reynold's  Ex'r,  7  S.  &  R.  328 ;  White  v.  Ward  et.  al.,  9  Johns.  R. 
232 ;  Nace  et  al.  v.  Ilollenback,  1  S.  &  R.  548 ;  Bender  v.  Frorn- 
berger,  4  Dall.  436. 

The  mode  of  proceeding  adopted  by  the  plaintiffs  in  the  suit  upon 
the  bond  was  perfectly  regular.  They  first  took  judgment  against 
the  defendants,  the  executors  of  John  Ross,  and  then  went  to  trial 
with  the  terre-tenants. 

Such  is  the  mode  in  the  case  of  a  scire  facias  on  a  mortgage  or 
recognisance;  judgment  is  taken  against  the  cognizors  or  mort- 
gagors, and  then  the  plaintiff  goes  to  trial  as  to  the  terre-tenants. 

Carothers,  for  the  defendants  in  error. — 1st.  Samuel  Ross  was 
executor,  and  also  seised  of  the  legal  estate  in  the  lands  in  question, 
under  the  will  of  his  father.  The  interest  of  the  legatees  become 
vested  in  him  by  purchase,  and  the  execution  of  the  power,  under 
the  will,  was  thereby  dispensed  with,  and  the  devise  became  abso- 
lute. [The  court  here  told  Mr.  Carothcrx  that  he  need  not  labor 
this  point.] 

2d.   As  to  the  lien  of  the  debt  to  Boyer  and  Boyer,  it  was  gone. 

The  debt  had  stood  from  1793  to  1823,  and  if  there  was  a  lien, 


Oct.  1829.]  OF  PENNSYLVANIA.  157 

[I limes  v.  Jacobs.] 

as  against  Samuel  Ross,  it  was  discharged  by  the  sheriff's  sale,  un- 
der which  Deardorff  became  the  owner  of  the  land :  Commonwealth 
for  the  use  of  Guernsey  u.  Alexander,  14  S.  &  11.  257  ;  McLan- 
ahan  v.  McLanahan,  ante,  96. 

It  is  not  conceded  that  Deardorff  had  notice  of  the  debt,  but  in 
Bombay  v.  Boyer,  14  S.  &  11.  253,  it  was  decided  that  express 
notice  of  a  judgment  does  not  avoid  the  limitation  of  its  lien  to  five 
years.  This  principle  is  equally  applicable  to  the  Act  of  1797,  as 
to  the  lien  of  debts  of  decedents. 

But  if  actual  notice  had  been  given  by  Boyer,  it  would  riot  be 
enough,  for  the  Act  of  Assembly  requires  the  notice  to  be  of  record, 
arid  none  other  will  suffice  to  preserve  the  lien  of  the  debt  under 
that  act. 

The  lien  was  clearly  gone,  nor  is  there  any  virtue  in  the  proceed- 
ings in  the  suit  upon  the  debt  to  preserve  it.  That  proceeding  was 
an  anomaly.  In  Pennsylvania  there  is  no  such  thing  as  an  action 
of  debt  with  a  notice  to  the  tenants  of  land,  against  which  a  lien  is 
asserted.  In  England  the  heir  is  not  bound  unless  the  ancestor 
bound  him,  but  in  Pennsylvania  lands  are  subject  to  the  payment 
of  debts,  and  are  bound  in  the  hands  of  the  heir,  independent  of 
any  contract  to  that  effect.  It  is  not  in  such  case  affected  directly 
but  collaterally.  The  principles,  therefore,  which  prevail  in  Eng- 
land on  this  subject,  are  wholly  inapplicable  here.  The  form  of 
action  is  without  any  precedent,  and  no  good  can  result  from  adopt- 
ing it.  The  whole  proceeding  on  this  point  was  a  nullity,  and 
altogether  immaterial.  A  party  is  never  concluded  by  an  imma- 
terial averment  or  issue.  An  estoppel  must  be  clearly  shown.  This 
record  does  not  show  it  clearly.  The  plea  put  in  was  "payment," 
suppose  it  to  have  been  put  in  by  Deardorff,  it  would  not  admit  the 
trial  of  the  question  of  lien.  It  would  not  in  the  case  of  a  scire 
facias  on  a  recognisance  or  mortgage.  In  Magauran  v.  Patterson, 
6  S.  &  R.  278,  it  is  said  a  verdict  is  conclusive  as  to  the  fact  found, 
or  passed  upon.  Where  it  is  a  man's  duty  to  plead  he  may  be 
bound.  But  the  application  of  this  principle  to  this  case  would  be 
unjust. 

The  record  of  a  proceeding  between  landlord  and  tenant,  is  not 
conclusive  in  ejectment:  Galbraith  v.  Black,  4  S.  &  R.  212;  Hess 
v.  Heebie,  Id.  246. 

The  action  was  on  a  bond,  with  a  collateral  condition  to  perform 
covenants,  and  a  general  judgment  was  confessed  by  one  of  two 
executors. 

The  amount  of  the  damages  was  not  ascertained,  and  until  that 
was  done,  the  terre-tenants  were  not  bound  to  answer.  A  jury  in 
court,  or  inquest  on  a  writ,  was  the  proper  tribunal  for  this  inquiry. 
The  jury  then  tried  nothing  but  this  preliminary  issue,  to  which  the 
terre-tenants  could  not  be  parties:  Reigart  et  al.  v.  Ellmaker,  6  S. 
&  R,  4f>-6;  Kean  /•.  Ellmaker,  7  S.  &'R.  l-o. 


158  SUPREME  COURT  [Chambersburg 

[Himos  v.  Jacobs.] 

The  verdict  is  general,  and  if  it  were  between  the  plaintiffs  and 
terre-tenants,  it  would  bind  them  personally  which  cannot  be. 

The  plea  put  in  was  "by  the  defendant,"  and  not  by  the  terre- 
tenant,  and  he  can  in  no  way  be  affected  by  it. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — Land  being  assets  for  payment  of  debts,  may  be 
seized  in  execution  in  the  hands  of  the  heir,  on  a  judgment  exclu- 
sively against  the  executor1  who  has  no  occasion  to  do  more  than 
discharge  himself  of  eventual  liability  in  respect  of  the  personal 
assets ;  and,  therefore,  nothing  is  more  common  than  to  pray  judg- 
ment of  the  land  after  the  executor  has  discharged  himself  on  plene 
administravit.  Surely  it  would  be  more  just  to  afford  the  terre- 
tenant  who  is  the  party  to  be  affected,  an  opportunity  to  contest 
the  debt ;  and  it  has  never  been  supposed  that  the  plaintiff  may 
not  do  so.  Where  it  is  doubtful  whether  the  land  has  not  been  dis- 
charged in  the  hands  of  a  purchaser,  the  reason  for  affording  him 
an  opportunity  to  show  the  fact  is  not  so  urgent,  because  a  judg- 
ment against  the  executor,  being  conclusive  only  of  the  existence 
of  the  debt;  the  question  of  lien  may,  with  equal  advantage,  be 
tried  in  an  ejectment  by  the  sheriff's  vendee.  Still,  where  the 
terre-tenant  has  actually  appeared  and  had  an  opportunity  to  make 
a  full  defence,  even  though  he  may  not  have  availed  himself 
of  it,  he  is  concluded  to  every  intent.  In  Heller  v.  Jones,  4  Binn. 
61,  a  younger  judgment-creditor  who  had  appeared  to  a  scire 
facias  and  given  notice  that  he  would  insist  on  collusion  in  the 
concoction  of  the  original  judgment,  but  had  afterwards  taken  no 
part  at  the  trial,  was  precluded  from  controverting  the  fairness  of 
the  judgment  in  an  ejectment  by  a  purchaser  under  it ;  and  this 
on  the  ground  that  he  had  in  fact  had  a  opportunity  to  try  the 
question  and  neglected  it.  The  principle  of  that  case  is  in  accord- 
ance with  a  rule,  not  merely  of  pleading,  but  good  sense,  that  what- 
ever is  not  contested  at  the  proper  time  is  conceded.  Even  had  the 
terre-tenants  here  been  called  in  prematurely,  still  they  availed 
themselves  of  the  occasion,  and  had  as  fair  an  opportunity  to  make 
a  full  defence,  as  if  the  proper  time  to  do  so  had  not  been  antici- 
pated. They  came  in  to  show  that  the  land  was  not  debtor;  and 
this  they  were  competent  to  do,  either  by  disproving  the  debt  or 
nullifying  its  lien  ;  each  of  which  was  open  to  them  as  an  available 
ground  of  defence,  and  there  is  no  reason  why  they  should  be  suf- 
fered to  use  but  one  and  reserve  the  other.  That  is  the  naked 
point,  here,  as  their  right  to  do  so,  is  evident  from  the  proceedings 
in  the  original  action.  The  plaintiff  brought  debt  on  bond  against 
the  executors  of  the  obligee,  with  notice  to  terre-tenants  who  had 
purchased  from  the  heir,  and  claimed  to  hold  the  land  discharged. 
The  executors  confessed  judgment ;  but  the  terre-tenants  went  to 
trial  on  the  plea  of  payment,  and  it  was  found  against  them.  Now 
Sec,  114  February  1X34,  g  34  P.  L.  bO. 


Oct.  1829.]  OF  PENNSYLVANIA.  159 

[Ilimes  ».  Jacobs.] 

I  am  not  going  to  say  what  may  be  given  in  evidence  under  that 
plea.  The  question  of  lien  was  tried  or  it  was  not.  If  it  was  tried, 
it  will  not  be  pretended  that  it  ought  to  be  tried  over  again  ;  and 
if  it  might  have  been  tried  under  a  proper  plea  and  was  not,  then 
the  case  is  within  the  principle  of  Heller  v.  Jones,  and  the  terre- 
tenants  are  concluded  just  as  if  the  fact  had  been  expressly  found 
against  them.  That  case,  however,  is  by  no  means  so  strong  in 
circumstances.  There  the  younger  judgment-creditor  had  only 
given  notice  of  an  intended  defence,  without  proceeding  further ; 
here  the  terre-tenants  actually  went  to  trial,  and  were  necessarily 
bound  to  bring  forward  their  whole  defence  ;  so  that,  notwithstand- 
ing the  lien  was  clearly  gone,  yet  having  missed  the  opportunity  to 
show  it,  we  are  of  the  opinion  they  are  concluded. 

Judgment  reversed,  and  venire  de  novo  awarded. 

HUSTON,  J.,  and  SMITH,  J.,  dissented. 

Commented  on,  2  Norris  33. 
Followed,  5  W.  299. 


CASES 


IN 


THE  SUPREME  COURT 


OF 


PENNSYLVANIA. 


LANCASTER  DISTRICT— DECEMBER  ADJOURNED 
COURT,  1829. 


Bank  of  Pennsylvania  against  Haldeman  et  al. 


IN    ERROR. 


Upon  the  allegation  of  forgery,  it  is  not  necessary  to  produce,  as  wit- 
nesses, all  the  persons  in  whose  possession  the  forced  paper  had  been,  in  order 
to  identify  it — its  identity  is  a  matter  of  fact  for  the  jury. 

A  comparison  of  handwriting  is  admissible  in  evidence  in  civil  cases  in  cor- 
roboration  of  a  belief  of  a  witness  founded  upon  actual  knowledge. 

The  testimony  of  an  expert,  who  speaks  alone  from  his  knowledge  and  skill 
in  handwriting,  is  not  competent  to  establish  a  forgery. 

When  the  Court  of  Common  Pleas  erroneously  permit  evidence  to  be  given 
to  the  jury,  no  such  evidence  being  afterwards  given,  this  court  will  not 
reverse  the  judgment. 

If  an  executor,  upon  the  settlement  of  an  account  of  his  testator,  allows  i 
credit  for  a  check,  this  is  not  such  an  administration  of  this  part  of  the  assets 
as  will  preclude  an  administrator  de  lionis  mm  from  sustaining  an  action  to 
recover  the  amount  of  the  check,  which  lie  proved  to  be  a  forgery. 

A  promise  laid  in  one  count,  as  having  been  made  to  the  testator  in  his  life- 
time, and  in  another  as  having  been  made  to  his  administrators  after  his 
death,  is  not  such  a  misjoinder  of  counts  as  will  be  fatal  to  a  general  verdict 
and  judgment. 

Wherever  the  funds  to  which  the  money  and  the  costs  are  to  he  applied, 
or  out  of  which  the  costs  are  to  be  paid,  are  the  same,  and  the  money  when 
recovered  would  be  assets,  then  the  counts  may  be  joined. 

WHIT  of  error  to  the  District  Court  of  Lancaster  county. 
IP.  &  W.— 11 


162  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  r.  Jacobs.] 

The  defendants  in  error  were  plaintiffs  below,  and  brought  an 
action  on  the  case,  against  the  Bank  of  Pennsylvania,  to  recover 
the  sum  of  $2500,  wjtn  interest  from  the  22d  March  1819,  under 
the  following  circumstances  : — 

Samuel  Jacobs,  the  plaintiff's  testator,  was  a  depositor  in  the 
Bank  of  Pennsylvania,  which  in  the  year  1819,  paid  six  checks 
signed  "Samuel  Jacobs,"  the  last  of  which  was  for  $2500,  and 
dated  22d  March  1819,  and  for  the  amount  of  which  this  suit  is 
brought. 

Samuel  Jacobs,  the  testator,  died  on  the  14th  April  1819,  having 
first  made  a  will  and  testament,  by  which  he  appointed  William 
Coleman  and  James  Coleman  to  be  his  executors.  Afterwards,  on 
the  5th  June  1819,  William  Coleman  went  to  the  bank,  with  the 
testator's  bank-book,  and  had  it  settled,  including  the  check  of 
32500  in  the  settlement,  and  received  from  the  bank  the  six  checks. 
Upon  his  return  to  the  late  residence  of  his  testator,  some  of  the 
heirs  doubted  the  genuineness  of  the  check  of  the  22d  March  1819, 
and  one  of  them  pronounced  it  a  forgery.  On  the  2d  July  1819, 
Mr.  Coleman  returned  to  the  bank,  and  brought  with  him  the 
checks  and  book,  which  were  examined  by  the  cashier  and  others, 
and  then  thought  to  be  genuine,  and  Mr.  Coleman  was  of  the  same 
opinion  ;  and  said  that  the  heirs  wished  him  to  bring  suit  against 
the  bank  to  recover  the  money,  but  unless  they  could  produce  some 
proof  to  him,  he  would  not  do  it.  On  the  same  day,  the  balance 
in  favor  of  Samuel  Jacobs,  of  $2587.69,  was  transferred  by  the 
check  of  William  Coleman,  to  the  credit  of  William  Coleman  and 
James  Coleman,  executors  of  Samuel  Jacobs,  deceased,  with  whom 
the  account  continued  till  10th  January  1821,  when  it  was  finally 
closed,  and  the  balance  of  $389.24,  drawn  out  by  William  Coleman. 

On  the  3d  January  1821,  William  and  James  Coleman  settled  a 
final  account  of  their  administration  of  the  estate  of  Samuel  Jacobs, 
and  were  discharged  by  the  Orphans'  Court ;  when  letters  of 
administration  de  bonis  non,  with  the  will  annexed  of  Samuel 
Jacobs,  deceased,  issued  to  Jacob  M.  Iluldetnan  and  Richard  T. 
Jacobs,  who  gave  to  William  and  James  Coleman,  a  receipt  and 
acquittance  in  full  for  the  balance  in  their  hands. 

The  following  declaration  (the  joinder  of  counts  in  which  was 
assigned  as  error),  was  filed : — 

LANCASTER  COUNTY,  ss. — The  president,  directors  and  com- 
pany of  the  Bank  of  Pennsylvania,  were  summoned  to  answer 
Jacob  M.  Haldeman  and  Richard  T  Jacobs,  administrators  of 
all  and  singular  the  goods  and  chattels,  rights  and  credits,  which 
were  of  Samuel  Jacobs,  deceased,  left  unadministcred,  with  the 
will  of  the  said  Samuel  Jacobs,  deceased,  annexed  of  a  plea  of 
trespass  on  the  case,  &c.  And  whereupon,  the  said  Jacob  and 
the  said  Richard,  by  Gcorye  W.  Jacobs,  their  attorney,  com- 


Dec.  1829.]  OF  PENNSYLVANIA.  163 

[Bank  of  Pennsylvania  v.  Jacobs.] 

plain,  That,  whereas,  the  aforesaid  president,  directors  and  com- 
pany, on  the  first  day  of  March,  in  the  year  of  our  Lord,  1819, 
at  the  county  aforesaid,  were  indebted  to  the  said  Samuel  Jacobs, 
now  deceased,  in  his  lifetime,  in  the  sum  of  $5000,  lawful  money 
of  the  United  States,  for  so  much  money  by  the  said  president, 
directors  and  company,  before  that  time  had  and  received,  to  and 
for  the  use  of  said  Samuel  Jacobs,  now  deceased.  And  being 
so  indebted,  they,  the  said  president,  directors  and  company,  in  con- 
sideration thereof,  afterwards,  to  wit :  on  the  day  and  year  last 
aforesaid,  in  the  county  of  Lancaster  aforesaid,  undertook,  and  then 
and  there  faithfully  promised  the  said  Samuel  Jacobs,  now  de- 
ceased, in  his  lifetime,  to  pay  him  the  said  last  mentioned  sum  of 
money,  when  they,  the  said  president,  directors  and  company,  should 
be  thereunto  afterwards  requested. 

Yet  the  said  president,  directors  and  company,  not  regarding 
their  said  promise  and  undertaking,  but  contriving  and  intending 
to  deceive  and  defraud  the  said  Samuel  Jacobs,  in  his  lifetime,  and 
the  said  Jacob  and  the  said  Richard  as  administrators,  as  aforesaid, 
after  the  death  of  the  said  Samuel  Jacobs  in  this  behalf,  have  not 
as  yet  paid  the  said  sum  of  money,  or  any  part  thereof,  to  the  said 
Samuel  Jacobs  in  his  lifetime,  or  to  the  said  Jacob  or  the  said 
Richard,  administrators  aforesaid,  since  the  death  of  the  said 
Samuel  Jacobs  (although  often  requested  so  to  do),  but  they  so  to 
do  have  hitherto  wholly  refused,  arid  still  do  refuse,  to  pay  the 
same  or  any  part  thereof  to  the  said  Jacob  and  the  said  Richard, 
as  administrators  as  aforesaid. 

And  whereas,  also  the  said  Jacob  M.  Haldeman  and  Richard  T. 
Jacobs,  administrators  of  all  and  singular  the  goods,  chattels,  and 
credits,  which  were  of  Samuel  Jacobs,  deceased,  left  unadminis- 
tered,  with  the  will  of  the  said  Samuel  Jacobs,  deceased,  annexed, 
complain  against  the  president,  directors  and  company  of  the  Bank 
of  Pennsylvania.,  for  that  whereas,  heretofore  to  wit :  on  the  24th 
day  of  December,  in  the  year  of  our  Lord,  1823,  at  the  county  of 
Lancaster  aforesaid,  the  aforesaid  president,  directors  and  company 
were  indebted  to  the  said  Jacob  and  the  said  Richard,  as  administra- 
tors as  aforesaid,  in  the  sum  of  $5000,  lawful  money  of  the  United 
States,  for  so  much  money  by  them,  the  said  president,  directors 
and  company,  to  the  use  of  the  said  Jacob  and  the  said  Richard  as 
administrators  as  aforesaid,  before  that  time  had  and  received  :  And 
being  so  indebted,  they,  the  said  president,  directors  and  com- 
pany, in  consideration  thereof,  afterwards,  to  wit :  on  the  day  and 
year  last  aforesaid,  undertook,  and  then  and  there  faithfully  pro- 
mised the  said  Jacob  and  the  said  Richard, administrators  as  aforesaid, 
to  pay  them  the  said  sum  of  money  last  mentioned,  whenever  after- 
wards they  the  said  president,  directors  and  company  should  be 
thereunto  afterwards  requested.  Yet  the  said  president,  directors 


164  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  r.  Jacobs.] 

and  company,  not  regarding  their  said  promise  and  undertaking,  so 
as  aforesaid  made,  but  contriving  and  intending  to  deceive  and  de- 
fraud the  said  Samuel  Jacobs  in  his  lifetime,  and  the  said  Jacob 
and  the  said  Richard,  as  administrators  as  aforesaid  after  the  death 
of  the  said  Samuel  Jacobs,  in  this  behalf,  hath  not  as  yet  paid  the 
said  sum  of  money,  or  any  part  thereof,  to  the  said  Samuel  Jacobs 
in  his  lifetime,  or  to  the  said  Jacob  and  the  said  Richard,  as  admin- 
istrators as  aforesaid,  since  the  death  of  the  said  Samuel  Jacobs, 
although  to  do  the  same,  afterwards,  to  wit :  the  2d  day  of  January, 
in  the  year  of  our  Lord,  1824,  at  the  county  of  Lancaster  aforesaid, 
they  were  required ;  but  the  same  to  pay  to  them,  the  said  Jacob 
and  the  said  Richard,  as  administrators  as  aforesaid,  they  the  said 
president,  directors  and  company  have  hitherto  wholly  refused  and 
still  refuse  to  pay  the  same,  or  any  part  thereof,  although  often 
requested  so  to  do — to  the  damage  of  the  said  Jacob  M.  Ilaldeman 
and  Richard  T.  Jacobs,  as  administrators  as  aforesaid,  in  the  sum 
of  $7000. 

And  therefore  they  bring  this  suit,  £c. 

JOHN  DOE  and  )  Pledges  of 


d  )  Pledget 
i,  f  Proseci 


RICHARD  ROE,  f  Prosecution. 

And  the  said  Jacob  M.  Ilaldeman  and  Richard  T.  Jacobs,  bring 
here  into  court  the  letters  of  administration  in  due  form  of  law, 
which  give  sufficient  evidence  to  the  said  court  here,  of  the  grant 
of  administration  to  the  said  Jacob  arid  said  Richard  as  aforesaid. 

The  pleas  were  non  assumpsit,  and  payment  with  leave,  &c., 
replication,  non  solvit.  Issues. 

The  plaintiffs,  to  maintain  the  issue  on  their  part,  called  Mr. 
Ogilby,  the  cashier  of  the  bank,  to  whom  the  six  checks  were  ex- 
hibited, and  who  said,  "  I  presume  these  are  the  same  checks  I 
gave  to  Mr.  William  Coleman ;  I  believe  the  checks  to  be  the 
same."  They  then  offered  to  read  the  checks  to  the  jury  ;  to 
which  the  defendant  objected,  which  objection  was  overruled  by  the 
court,  and  the  evidence  admitted,  which  formed  the  first  bill  of  ex- 
ceptions. 

General  Foster,  being  sworn  as  a  witness,  and  having  said  that 
he  was  well  acquainted  with  the  handwriting  of  Samuel  Jacobs ; 
the  plaintiff  proposed  to  ask  him  this  question:  "from  voiir  know- 
ledge of  the  handwriting  of  Samuel  Jacobs,  and  from  comparing 
the  check  of  March  22d  1811),  with  those  parts  of  the  check  of 
Jan.  20th,  Jan.  21st,  Feb.  4th,  March  1st,  and  March  21st  1819, 
which  you  have  stated  to  be  in  his  handwriting,  what  is  your 
opinion  and  belief  as  to  the  signature  and  body  of  the  check  of 
March  22d  1811),  being  in  the  handwriting  of  Samuel  Jacobs  ;" 
to  which  the  defendants  objected,  but  the.  objection  was  overruled 
and  evidence  given,  which  formed  the  second  bill  of  exceptions. 


Dee.  1829.]  OF  PENNSYLVANIA.  165 

[Bank  of  Pennsylvania  r.  Jacobs.] 

The  plaintiffs  then  offered  to  prove,  "  that  John  Eberman  in  and 
has  been  cashier  of  the  Farmers  Bank  of  Lancaster  for  twelve 
years;  that  William  White  was  cashier  of  the  Lancaster  Bank  for 
seven  years  prior  to  October  1824;  that  John  Schmidt  is  and  lias 
been  cashier  of  the  York  Bank  for  ten  years ;  and  that  the  said 
Eberman,  White  and  Schmidt  are  and  have  been  for  the  said  num- 
ber of  years  experienced  and  skilled  in  the  examination  of  bank- 
notes, checks  and  other  writings,  with  a  view  and  for  the  purpose 
of  detecting  forgeries."  And  to  prove  by  said  witnesses  that  in 
their  opinion  and  belief  the  check  of  22d  March  1819  is  not  the 
handwriting  of  Samuel  Jacobs,  nor  any  part  thereof,  said  opinion 
and  belief  being  formed  from  comparing  the  said  check  with  the 
signature  and  whole  check  of  January  20th  1819 — the  signature  to 
the  check  of  January  21st  1819 — the  signature  and  whole  check 
of  February  4th  1819,  excepting  the  marks  and  figures  at  the  head 
"  35Q=:00" — the  signature  to  the  check  of  March  1st  1819,  and 
with  the  whole  check  of  21st  March  1819;  which  have  been  testi- 
fied by  John  Former,  Henry  Alward  and  Joseph  Wallace  to  be  in 
the  handwriting  of  Samuel  Jacobs,  and  that  in  their  opinion  and 
belief  the  part  of  the  check  of  March  22fZ  1819  which  is  in  writing 
is  written  in  an  imitated  character  or  traced  hand.  To  all  which 
the  defendant  objected,  but  the  court  admitted  to  go  in  evidence 
that  part  of  the  offer  which  is  in  italic  letter,  which  formed  the 
third  bill  of  exceptions. 

John  Eberman  was  then  sworn,  and  said,  "  that  he  had  been 
cashier  of  the  Fanners'  Bank  of  Lancaster  eleven  years ;  that  lie 
was  often  called  upon  to  detect  forgeries ;"  as  to  the  check  in  ques- 
tion, he  said,  "  from  the  appearance  of  this  check  I  could  not  say 
that  it  is  imitated ;  I  never  saw  Mr.  Jacobs  write  ;  I  do  not  know 
his  handwriting  at  all."  The  witness  was  then  shown  the  check 
of  the  21st  March  1819,  and  the  plaintiffs  offered  to  prove  by  him, 
"  that  in  the  beginning  of  the  year  1824,  or  about  that  time,  this 
check  of  the  21st  March  1819,  with  the  other  five,  were  exhibited 
to  the  witness ;  that  at  that  time,  in  the  word  March,  the  h  had  a 
singular  turn  at  the  end  of  it,  which  the  witness  will  describe  :  that 
the  witness  was  not  certain  whether  it  was  ink  or  some  other  sub- 
stance which  adhered  to  the  paper:  that  the  witness  touched  it  witli 
his  pen-knife  to  ascertain  what  it  was,  and  it  came  off — the  mark 
of  it  being  yet  visible,  or  nearly  so,  on  the  paper ;  and  that  the  said 
mark  was  precisely  similar  to  the  mark  at  the  end  of  the  h.  in  the 
word  March,  on  the  check  of  22d  March  1819,  for  $2f>00,"  which 
was  objected  to,  objection  overruled  and  testimony  admitted ;  which 
formed  the  fourth  bill  of  exceptions. 

John  Schmidt,  the  witness  mentioned  in  the  third  bill  of  excep- 
tions, as  to  the  check  in  question  said  :  "  I  would  not  undertake  to 
6ay  whether  that  be  a  traced  or  fair  hand ;  1  should  suppose  it  a 


166  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  r.  Jacobs.] 

slow  hand  ;  I  would  consider  it  a  stiff  hand.  It  would  be  necessary 
for  me  to  compare  it  with  other  writing  to  ascertain  whether  it  is  a 
traced  hand  or  not ;  I  am  not  acquainted  with  the  handwriting  of 
Mr.  Jacobs." 

William  White  was  not  sworn  at  all. 

The  plaintiffs  then  offered  to  prove  by  Christian  Brubaker  "that 
in  the  winter  or  spring  of  1819,  as  executor  of  one  Kyser,  he  sold 
a  plantation  to  Samuel  Jacobs,  for  $4000,  payable  on  the  1st  April 
1819 ;  that  witness  wanted  money  to  loan  to  his  brother,  and  went 
to  Mr.  Jacobs  and  got  in  advance  $1000,  on  the  22d  March  1819, 
by  a  check  on  the  Office  of  Discount  and  Deposite,  at  Lancaster, 
here  shown,  and  erroneously  dated  21st  March  1819 ;  that  soon 
after  that,  Mr.  Jacobs  got  sick,  and  witness  never  saw  him  again ; 
witness  went  to  his  house  or  office,  on  the  1st  April  1819,  but  found 
him  so  sick  that  he  did  not  see  him ;  the  balance  of  the  money  due 
witness  was  paid  in  cash  by  William  Coleman,  after  Mr.  Jacobs's 
death" — which  evidence  was  objected  to  by  the  defendant,  the 
objection  overruled  by  the  court  and  testimony  admitted,  which 
formed  the  fifth  bill  of  exceptions. 

The  plaintiffs  having  closed  their  testimony,  the  counsel  for  the 
defendants,  before  they  proceeded  to  open  their  case,  moved  the 
court  to  withdraw  from  the  consideration  of  the  jury  the  six  checks 
given  in  evidence,  on  the  ground  that  they  had  not  been  legally 
identified ;  and  to  overrule  all  the  evidence  given  on  the  part  of  the 
plaintiffs,  except  that  contained  in  the  first  twelve  lines  of  the 
judges'  notes  of  Mr.  Ogilby's  testimony  ;  which  the  court  refused 
to  do,  and  which  formed  the  sixth  bill  of  exceptions. 

The  defendants,  to  maintain  the  issues  on  their  part,  now  offer, 
after  the  evidence  already  given,  the  inventory  exhibited  on  the 
22d  May  1819,  by  William  and  James  Coleman,  executors  of 
Samuel  Jacobs,  deceased,  to  the  register  of  the  county  of  Lebanon, 
and  also  the  administration  account  of  the  said  executors,  exhibited 
1st  December  1820,  and  finally  passed  arid  confirmed  on  3d  Jan- 
uary 1821,  and,  in  connection  witli  those,  a  receipt  and  acquittance 
from  Jacob  M.  Haldeman  and  Richard  T.  Jacobs,  administrators 
de  bonis  non  then  appointed,  bearing  date  3d  January  1821,  the 
said  receipt  and  acquittance  having  been  given  by  the  said  adminis- 
trators de  bonix  non  to  the  aforesaid  executors,  to  which  the  plain- 
tiffs objected,  the  court  sustained  the  objection,  which  formed  the 
seventh  bill  of  exceptions. 

The  defendants'  testimony  being  closed,  the  plaintiffs  made  the 
following  offer:  "The  defendants  having  given  in  evidence  by  Mr. 
Ogilby,  that  the  check  of  $2">00  was  paid  to  a  boy ;  the  plaintiffs 
now  offer  to  prove  that  Christian  Brubaker  sent  his  check  of  $1000, 
dated  21st  March  1819,  to  the  bank,  by  a  boy  out  of  Ober  and 
Kline's  store — that  the  boy  who  went  to  the  bank  for  the  money 


Dec.  1829.]  OF  PENNSYLVANIA.  167 

[Bank  of  Pennsylvania  v.  Jacobs.] 

was  about  twelve  or  fourteen  years  of  age,  who  returned  in  a  few 
minutes  and  brought  the  money  with  him,"  to  which  the  defendant 
objected,  the  objection  was  overruled,  and  testimony  admitted, 
which  formed  the  eighth  bill  of  exceptions. 

The  testimony  being  closed,  the  defendant  propounded  to  the 
court  the  following  points,  upon  which  they  were  requested  to 
charge  the  jury  : 

1.  That  after  probate  of  the  will  and  a  grant  of  letters  of  admin- 
istration, an  executor  is  the  only  legal  representative  of  the  testator, 
for  the  purpose  of  settling  his  estate.     That  in  the  settlement  of  the 
personal  estate,  at  least  his  powers  are  limited  only  by  the  laws  of 
the  land,  or  by  an  express  restriction  in  the  will.     That  he  may 
collect  debts  and  pay  creditors,  settle  or  compound  for  outstanding 
accounts,  and  that  so  far  as  regards  the  debtors  and  creditors,  the 
settlement  is  final  arid  conclusive,  and  can  never  be  inquired  into 
or  overhauled  by  any  succeeding  executor  or  administrator  de  bonis 
non. 

2.  That  an  administrator  de  bonis  non  is  confined  by  his  very 
appointment,  to  the  administration  of  such  portion  of  the  estate  as 
was  unadministered  by  his  predecessors. 

8.  That  as  it  is  an  uncontradicted  proof,  that  W.  Coleman,  one 
of  the  executors  duly  appointed  of  Samuel  Jacobs,  deceased,  did  on 
the  5th  June  181(J,  settle  the  accounts  of  his  testator  with  the 
office  of  Discount  and  Deposite  at  Lancaster,  and  approved  of  its 
correctness ;  and  at  that  time  received  and  took  into  his  possession 
all  the  checks  then  remaining  in  the  said  office;  including  the  one 
dated  22d  March  1819,  the  subject-matter  of  this  suit;  and  as  he. 
on  2d  July  following,  after  full  knowledge  of  the  suspicions  enter- 
tained by  some  of  the  heirs  as  to  the  genuineness  of  the  above- 
mentioned  check,  drew  by  his  check  of  2d  July  1819,  in  the  name 
of  Win.  Coleman,  executor  of  Samuel  Jacobs,  deceased,  the  whole 
balance  then  due  to  his  testator  by  the  said  office,  viz. :  §2587.09, 
and  afterwards  deposited  the  same  to  the  credit  of  William  and 
James  Coleman,  executors  of  Samuel  Jacobs,  deceased,  that  this 
was  such  a  settlement  as  must  completely  protect  the  present 
defendants. 

4.  That  as  it  is  in  express  proof,  by  the  letter  of  administrations 
de  bonis  non  given  in  evidence  by  the  plaintiffs,  that  subsequently 
to  the  2d  of  July  1819,  the  date  of  the  settlement  with  the  ollice  of 
Discount  and  Deposite,  as  set  forth  in  the  preceding  point,  Win.  and 
James  Coleman,  executors  of  Samuel  Jacobs,  deceased,  settled  their 
administration-account  on  the  said  estate,  and  that  the  same  was 
approved  of  by  the  Orphans'  Court  of  the  county  of  Lebanon, 
before  they  were  discharged  from  their  trusts  as  executors  aforesaid: 
and  as  the  said  account  remains  until  this  day  in  full  force  and  un- 
appealed  from,  that  this  is  such  an  administration  of  this  part  of  the 


168  SUPREME  COURT  [Lancaster 

[Bunk  of  Pennsylvania  v.  Jacobs.] 

assets,  as  must  entirely  prevent  the  present  plaintiffs  from  recover- 
ing in  this  suit. 

5.  That  as  the  money,  the  subject-matter  of  the  present  suit, 
was  voluntarily  settled  for,  and  paid  by  the  executors  of  Samuel 
Jacobs,  deceased,  to  the  present  defendants,  and  by  them  received 
without  any  fraud  or  unfair  practice,  it  could  never  be  recovered 
even  by  the  executors  themselves,  and  d  fortiori  not  by  the  admin- 
istrators de  bouts  non. 

6.  That  it  is  well  settled  as  a  general  rule  of  evidence,  that  the 
best  Evidence  the  nature  of  the  case  will  admit  of  must  be  pro- 
duced ;  and  as  it  is  in  proof  that  Wm.  Coleman,  to  whom  Joseph 
Ogilby,  the  witness,  delivered  the  checks,  was  present,  attending 
the   trial   of  this    cause ;    and  as  the  plaintiffs  have  not  thought 
proper  to  call  him  to  prove  the  identity  of  the  six  checks  read  in 
evidence  to  the  jury,  and  particularly  the  check  of  22d  March 
1810,  for  §2500,  now  alleged  to  be  counterfeit,  and  to  recover  the 
amount  of  which,  with  interest,  this  suit  is  brought;    the  plain- 
tiffs   therefore   cannot    recover,  and    the  jury    must  find  for    the 
defendants. 

7.  That  the  belief  of  the  three  witnesses,  Joseph  Ogilby,  John 
Elder  and  George  Beckel,  as  to  the  identity  of  the  check  of  22d 
March  1819,  is  not  evidence,  that  it  is  the  same  check  that  was 
paid  by  Joseph  Ogilby;  the  plaintiffs  must  prove  the  actual  fact  of 
identity,  and  not  having  done  so,  they  cannot  recover  in  this  suit. 

8.  That  mere  belief  is  no  evidence,  except  from  necessity;    and 
when  the  party  has  it  in  his  power  to  prove  the  actual  fact,  he  must 
do  so,  and  nothing  short  of  that  is  evidence.     And  wherever  there 
is  an  allegation  of  forgery,  as  in  this  case,  it  is  indispensably  neces- 
sary to  prove  the  identity  of  the  thing  alleged  to  be  forged ;  and  as 
the  plaintiffs  (if  the  fact  were  so),  had  it  in  their  power  to  prove 
that  this  was  the  identical  check  paid  by  Mr.  Ogilby,  and  have  not 
so  proved,  they  have  failed  to  maintain  their  action  and  the  verdict 
must  be  in  favor  of  the  defendants. 

9.  That  the  opinion  and  belief  of  witnesses,  in  regard  to  the 
genuineness  of  writing,  must  be  founded  upon  the  impression  made 
upon  their  minds  by  the  handwriting  itself;   and  opinion  or  belief 
founded  not  upon  this,  but  upon  extrinsic  circumstances,  is  prima 
facie  evidence  of  the  genuineness  of  the  instrument  in  question. 

WILLIAM  JENKINS, 
JOHN  It.  MONTGOMERY. 

CHARGE  OF  THE  COURT. — This  is  an  action  on  the  case,  brought 
by  the  administrators  de  bonia  non  of  Samuel  Jacobs,  deceased, 
against  the  Bank  of  Pennsylvania,  to  recover  from  that  institution 
32500,  which  the  plaintiffs  allege  was  improperly  credited  to  the 
bank,  in  the  deposite  account  of  the  deceased,  on  a  check  which 


1829.]  OF  PENNSYLVANIA.  1C9 

[Bank  of  Pennsylvania  v.  Jacobs.] 

they  allege  is  forged,  dated  on  the  22d  March  1810,  for  that  sum. 
Administrators  de  ftonis  non  are  administrators  after  the  first  ad- 
ministrators or  executors  of  a  deceased  have  died,  or  have  been  dis- 
charged by  the  proper  authority  from  their  trust.  Their  office  is 
to  administer  the  goods  and  chattels  of  the  deceased,  which  have 
not  been  administered  by  the  first  administrator  or  executor ;  and 
one  of  the  questions  that  arise  in  this  cause,  of  which  the  court  will 
give  you  their  opinion  presently,  is,  whether  the  money  in  question 
has  been  administered  upon  by  William  and  James  Coleman,  who 
were  the  executors  of  the  will  of  the  deceased. 

1st  point.  The  executors  of  a  deceased  are,  during  their  contin- 
uance in  office,  the  only  representatives  of  the  deceased,  in  relation 
to  his  personal  property,  and  in  the  discharge  of  their  trust  in 
settling  and  managing  the  personal  estate,  their  power  is  limited 
only  by  the  law  and  the  will  of  the  testator,  whom  they  represent. 
They  may  collect  debts,  pay  creditors,  and  settle  and  compound  for 
outstanding  accounts.  In  this  case  the  defendants  contend  that  the 
executors,  on  the  5th  of  June  1819,  made  a  settlement  of  the  ac- 
count between  the  estate  of  Samuel  Jacobs,  deceased,  and  the  bank  ; 
and  that  on  the  2d  of  July  afterwards,  they  recognised  the  settle- 
ment by  drawing  from  the  bank  the  balance  due  on  the  books  of 
the  institution,  and  depositing  it  to  their  credit  as  executors.  That 
in  the  settlement  there  was  comprised,  as  one  of  the  items  of  credit 
to  the*  bank,  the  sum  of  $2500,  which  the  bank  had  paid  on  the 
check  of  the  22d  March,  now  alleged  to  be  forged.  The  plaintiffs 
deny  that  this  was  a  final  settlement  of  the  accounts  between  the 
bank  and  the  estate,  and  allege  that  no  examination  of  the  items 
took  place  by  the  executors  who  made  it,  and  contend  that  it  amounts 
to  no  more  than  receiving  on  their  part,  from  the  bank,  what  ap- 
peared due  on  its  books. .  Whether  the  executors,  or  any  one  of  them, 
did  examine  the  account  and  approve  of  it,  and  make  a  final  settle- 
ment, is  a  matter  of  fact  for  your  consideration.  If  they  did  not 
make  a  final  settlement  with  the  bank,  but  only  received  from  the 
institution  what  appeared  to  be  due  on  its  books,  then,  if  the  check 
in  question  be  a  forgery,  and  the  bank  has  taken  credit  for  it,  and 
has  not  paid  it  to  the  executors,  the  $2500  in  question  are  a  part 
of  the  estate  of  the  deceased,  which  was  not  administered  upon  by 
the  executors,  and  may  be  recovered  in  this  action. 

A  settlement  made  by  an  executor  between  the  estate  of  the  tes- 
tator and  one  who  is  indebted  to  it,  is  so  far  final  and  conclusive 
upon  the  subsequent  administrator  de  bonis  non,  who  is  appointed 
after  the  executor  resigns  or  dies,  that  he  cannot  overturn  it.  unless 
he  can  show,  by  clear  and  satisfactory  evidence,  that  there  was  a 
mistake  in  such  settlement,  or  some  fraud  practised  on  the  executor, 
by  which  such  debtor  obtained  a  credit  against  the  estate,  to  which 
he  was  not  in  law  or  justice  entitled.  If  he  can  so  make  out  such 


170  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  v.  Jacobs.] 

mistake  or  fraud,  the  administrator  de  bonis  non  may  recover  the 
amount  of  such  mistake  as  goods  of  the  deceased  which  have  not 
been  administered  by  the  executor.  To  apply  this  rule  to  the  pres- 
ent case.  If  the  jury  are  satisfied  that  the  check  in  question  of  the 
22d  of  March  1819,  for  $2500,  is  the  same  check  for  which  the 
bank,  in  the  settlement  with  the  executors  got  a  credit  of  that  sum  ; 
if  they  are  also  satisfied  that  the'check  is  a  forged  paper,  and  that 
in  the  settlement  the  executors  of  Samuel  Jacobs  supposed  it  to  be 
genuine,  and  under  that  mistake  on  their  part,  it  was  credited  to 
the  bank,  then  the  §2500  in  the  check  mentioned  may  be  recovered 
by  the  present  plaintiffs  as  so  much  of  the  estate  of  the  deceased 
Samuel  Jacobs,  which  did  not  come  to  the  hands  of  his  executors, 
and  was  not  administered  by  them. 

2d  point.  The  administrator  de  bonis  non  is  confined  by  his  ap- 
pointment to  the  administration  of  ^uch  portions  of  the  estate  as 
were  unadministered  by  his  predecessor. 

3d  point.  In  answer  to  the  third  point  the  court  say  :  whether 
the  facts  be  as  they  are  stated  in  this  point  the  jury  must  judge,  but 
taking  them  to  be  all  true  as  they  are  stated,  it  does  not  follow,  as 
an  unconditional  conclusion  of  law,  that  the  plaintiffs  cannot  re- 
cover. If  such  fraud  or  mistake  happened  in  the  settlement,  if  one 
was  made,  as  the  court  has  mentioned,  and  the  jury  are  satisfied  of 
the  identity  of  the  check  in  question,  that  it  is  forged,  and  that  it 
was  credited  in  the  settlement  by  the  executors  under  a  mistaken 
idea  that  it  is  genuine,  as  the  court  has  already  said,  the  plaintiffs 
may  recover. 

If  the  jury  be  of  opinion  that  the  executors  did,  on  the  5th  of 
June  1819,  make  a  settlement  of  the  account  between  the  estate 
and  the  bank,  and  that  afterwards,  on  the  2d  of  July  1810,  and 
after  they  had  their  attention  drawn  to  the  subject  by  being  in- 
formed of  the  suspicions  of  some  of  the  heirs  that  the  check  in  ques- 
tion was  a  forgery  they  confirmed  it,  they  will  take  it  into  consid- 
eration, together  with  the  lapse  of  time  from  July  1819,  before  the 
bringing  of  this  suit,  when  they  come  to  make  up  their  opinion  on 
the  question,  whether  the  check  of  22d  March  1819,  is  a  forgery 
or  not. 

4th  point.  In  answer  to  the  fourth  point  the  court  say,  That  the 
recitals  in  the  letters  of  administration  de  bonis  non,  given  in 
evidence  by  the  plaintiffs,  must  be  taken  to  be  true.  They  show 
that  before  the  granting  of  them,  the  executors  had  settled  their 
account,  as  stated  in  this  point.  The  presumption  of  law  is,  that 
the  account,  so  settled  by  the  executors,  contained  a  full  and  per- 
fect account  of  all  the  assets  of  the  deceased,  which  had  come  to 
their  hands  at  the  time  they  were  discharged  from  their  trust,  and 
that  it  was  duly  settled  and  approved  by  the  proper  authority. 
Whether  the  settling  of  the  administration  account  by  the  exe- 


Dec.  1829.]  OF  PENNSYLVANIA.  171 

[Bank  of  Pennsylvania  v.  Jacobs.] 

cutors,  as  stated  in  this  point,  was  an  administration  of  the  part  of 
the  assets  of  the  deceased,  now  in  question  in  this  suit,  depends  on 
the  fact,  whether  the  $2500,  mentioned  in  the  check  in  question, 
had  previously  to  that  time,  come  to  the  hands  of  the  executors. 
If  they  had  received  the  money  in  question  from  the  bank,  the 
plaintiffs  could  not  recover  in  this  suit,  whether  they  charged  them- 
selves with  it  in  their  administration  account  or  not.  If  they 
charged  themselves  with  it  in  their  administration  account,  settled 
by  them,  they  have  administered  on  it,  and  the  plaintiffs  cannot 
recover,  whether  they  have  received  it  of  the  bank  or  not.  If  they 
neither  received  it  from  the  bank,  nor  charged  themselves  w^th  it 
in  their  account,  then  the  settling  of  an  account,  as  mentioned  in 
this  point,  would  not  be  an  administration  on  this  part  of  the  assets 
of  the  deceased,  and  the  plaintiff  is  not,  on  that  account,  prevented 
from  recovering. 

5th  point.  In  answer  to  the  fifth  point  the  court  say,  Where 
money  is  paid  by  one  man  to  another  in  such  circumstances,  that 
the  party  who  receives  it  may,  in  good  faith  and  conscience  retain 
it.  But  when  a  bank  has  credit  allowed  to  it  in  a  settlement  with 
an  individual,  for  a  check  it  has  previously  paid  out,  this  is  no  pay- 
ment by  the  individual  to  the  bank,  whether  the  check  be  genuine 
or  forged.  If  it  be  a  genuine  check,  the  bank  of  course  cannot  be 
called  on  again  for  the  money — if  it  be  forged  it  can. 

6th  point.  To  the  sixth  point  the  court  say.  In  a  prosecution  for 
a  forgery  of  a  bank  note,  it  is  necessary  for  the  prosecutor  to  show, 
either  that  there  is  some  particular  mark  on  the  paper  charged  to 
be  forged,  by  which  it  can  be  identified,  or  he  must  produce  every 
person  who  has  had  the  custody  of  it  since  it  was  passed  by  the 
prisoner,  to  make  out  the  identity.  But  the  court  is  of  opinion, 
this  strictness  is  not  necessary  in  civil  cases ;  in  criminal  cases  the 
prosecutor  is  himself  a  witness,  and  therefore  can  form  a  link  in 
the  chain  of  proof  of  identity ;  but  in  civil  cases  the  plaintiff  can- 
not be  examined,  and  therefore,  if  it  were  necessary  to  produce  as 
a  witness  in  court,  every  person  who  has  had  custody  of  the  paper, 
when  it  had  come  to  the  hands  of  the  plaintiff,  the  identity  could 
not  be  made  out,  except  in  cases  where  some  particular  mark  had 
been  put  on  it.  Secondary  evidence  is  such  as  indicates,  that  there 
is  better  evidence  behind,  in  the  power  of  the  party,  which  he 
declines  to  produce.  Whether  William  Coleinan  could  have  identi- 
fied the  check  in  question  better  than  the  witnesses  who  have  been 
examined,  is  entirely  contingent ;  they  had  passed  out  of  his  hands 
into  the  hands  of  the  plaintiffs.  The  court  is  therefore  of  opinion, 
that  the  plaintiffs  were  not  bound  to  produce  William  Coleman,  to 
prove  the  identity  of  the  check  in  question.  Whether  they  be  the 
same  checks  which  were  by  the  bank  delivered  by  William  Cole- 
man, is  a  matter  of  fact,  which  must  be  submitted  to  the  jury. 


172  SUPREME  COURT 

[Bank  of  Pennsylvania  r.  Jacobs.] 

7th  point.  In  answer  to  the  seventh  point  the  court  say,  Mere 
belief  of  a  witness  unacquainted  with  the  matter  touching  what  is 
to  be  examined,  is  certainly  no  evidence.  The  witnesses  who  speak 
on  the  subject  of  the  identity  of  the  check  of  the  22d  March  1819, 
are  the  cashier  of  the  bank,  J.  Ogilby,  and  George  Beckel,  who 
was  at  the  time  a  clerk  in  the  institution  ;  both  of  whom  had  seen 
it  in  bank,  and  John  Elder,  who  had  seen  it  while  it  was  in  the 
custody  of  William  Colenian.  You  have  heard  what  these  witnesses 
have  said  on  the  subject.  The  fact  that  the  check  given  in  evidence 
of  the  22d  March  1819,  is  the  same,  or  whether  the  bank  had  the 
82")00  in  question  in  this  suit,  is  an  important  one  in  this  cause, 
and  before  the  plaintiffs  can  recover,  they  must  make  it  out  by 
clear  and  satisfactory  evidence.  If  the  evidence  before  you,  satis- 
fies your  minds  of  the  fact,  that  the  check  given  in  evidence  is  the 
same  check,  you  may  find  it  without  any  more  positive  proof.  If 
you  are  not  satisfied  of  this  fact,  your  verdict  ought  to  be  for  the 
defendants. 

8th  point.  The  court  have  already  in  substance  answered  this 
point.  The  court  have  submitted  to  you  the  question  of  fact  in 
relation  to  the  identity  of  this  check  of  22d  of  March  1819,  as  well 
as  of  the  other  checks.  It  is  for  you  to  judge,  whether  the  evidence 
gives  you  entire  satisfaction  or  not.  If  it  does  not,  you  ought  to 
find  for  the  defendants ;  if  it  does,  then  you  will  find  the  fact  of 
'the  identity,  as  the  court  have  referred  it  to  you. 

9th  point.  The  opinion  of  a  witness  in  regard  to  the  genuineness 
of  a  writing,  must  be  founded  on  impressions  made  on  his  mind  by 
handwriting  itself.  When  a  witness  is  called  who  knows  the  hand- 
writing of  the  person  whose  name  is  alleged  to  be  forged,  ami  he  is 
of  opinion,  without  referring  to  facts  extrinsic  of  the  writing,  that 
it  is  a  genuine  paper,  his  evidence  must  go  to  the  jury  as  prima  facie 
evidence  of  the  genuineness  of  the  paper.  If  such  a  witness  cannot 
say,  on  examining  it,  whether  it  is  genuine  or  not,  without  recur- 
ring to  extrinsic  facts  in  relation  to  it,  it  proves  either  that  it  is  the 
hand  of  the  person  who  purports  to  have  written  it,  or  that  it  is  so 
good  an  imitation  that  it  is  very  difficult  to  discriminate  between  it 
and  the  genuine  writing  of  the  person. 

Finally,  the  case  submitted  to  your  consideration  is  an  important 
one,  not  only  on  account  of  the  amount  in  controversy,  but  on 
account  of  the  nature  of  the  facts  which  you  are  to  determine.  The 
plaintiffs  allege  that  the  check  in  question  of  the  22d  March  1819, 
i.s  the  same  check  on  which  the  bank  paid  out  the  $2500,  for  which 
this  suit  is  brought,  and  that  it  is  a  forgery.  If  they  have  made 
out  these  facts  by  evidence  which  satisfies  your  minds,  they  can 
recover ;  but  if  they  have  failed  in  proving  either  of  them  to  your 
satisfaction,  they  cannot  recover. 

In  this  court  the  following  errors  were  assigned : 


Dec.  1829.]  OF  PENNSYLVANIA.  173 

[Bank  of  Pennsylvania  v.  Jacobs.] 

1.  The  court  erred  in  admitting  in  evidence  the  checks  objected 
to  by  the  defendant's  counsel,  and  enumerated  in  and  made  the  sub- 
ject of  the  first  bill  of  exceptions. 

2.  The  court  erred  in  permitting  the  plaintiffs  to  give  in  evi- 
dence the  matters  contained  in  and  made  the  subject  of  the  second 
bill  of  exceptions. 

3.  The  court  erred  in  permitting  the  plaintiffs  to  give  in  evidence 
that  part  of  the  offer  marked  in  italic  letter,  and  recited  in,  and 
made  the  subject  of  the  third  bill  of  exceptions, 

4.  The  court  erred  in  permitting  the  plaintiffs  to  give  in  evidence 
the  matter  contained  in,  and  made  the  subject  of  the  fourth  bill  of 
exceptions. 

5.  The  court  erred  in  permitting  the  plaintiffs  to  give  in  evidence 
the  matters  contained  in,  and  made  the  subject  of  the  fifth  bill  of 
exceptions. 

(j.  The  court  erred  in  overruling  the  motion  made  by  the  coun- 
sel of  the  defendants,  and  contained  in,  and  made  the  subject  of  the 
sixth  bill  of  exceptions. 

7.  The  court  erred  in  refusing  to  allow  the  defendants  to  give  in 
evidence  the  matters  contained  in,  and  made  the  subject  of  the 
seventh  bill  of  exceptions. 

8.  The  court  erred  in  admitting  in  evidence,  on  the  part  of  the 
plaintiffs,  the  matters  contained  in,  and  made  the  subject  of  the 
eighth  bill  of  exceptions. 

I).  The  court  erred  in  their  answers  to  the  first,  third,  fourth, 
fifth,  sixth,  seventh  and  eighth  points,  proposed  by  the  counsel  for 
the  defendants. 

10.  There  is  a  misjoinder  of  counts  in  the  declaration,  and  the 
general  verdict  rendered  thereon  is  erroneous. 

11.  The  declaration  sets  forth  no  cause  of  action  on  the  part  of 
the  plaintiffs. 

Montgomery  and  Jenkins  for  plaintiff  in  error. — 1st  bill.  Mr. 
Ogilby  having  parted  with  the  possession  of  the  checks,  and  they 
having  passed  into  the  hands  of  several  persons  afterwards,  his 
testimony  was  not  sufficient  so  to  identify  the  checks  as  to  make 
them  competent  evidence  to  go  to  the  jury.  If  a  witness  who 
identifies  a  forged  paper  has  parted  with  the  possession  of  it  for  a 
time,  the  person  into  whose  possession  it  was  put  by  him  must  be 
called:  Commonwealth  r.  Kinnison,  4  Mass.  04l>. 

:M  bill.  Although  the  witness  had  seen  the  testator,  Mr.  Jacobs, 
write,  and  knew  his  handwriting,  yet  he  was  permitted  to  ansut-r 
the  question,  not  predicated  upon  his  knowledge,  but  upon  the  com- 
parison of  the  handwriting  in  the  check  in  question,  with  other 
checks  admitted  to  be  genuine.  A  comparison  of  handwriting  i.s 
never  allowed  except  in  corroboration  of  testimony  derived  from 


174  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  r.  Jacobs.] 

knowledge  of  the  handwriting.  It  is  never  admitted  of  itself,  to 
destroy,  but  to  support  other  testimony  :  Norris'  Peake's  Ev.  154  ; 
Jackson  ex  dera.  v.  Vandusen,  5  Johns.  R.  144;  Vickroy  v.  Skel- 
ley,  14  S.  &  R.  372 ;  Dacosta  v.  Pirn,  Appendix  to  Peake's  Ev.  42. 

3d  and  4th  bills.  The  testimony  admitted  was  that  of  an  expert 
in  judging  of  handwriting.  This  point  is  new  in  Pennsylvania, 
and  that  very  circumstance  is  a  strong  argument  against  the  neces- 
sity of  adopting  such  a  rule  of  evidence.  The  ordinary  ties  which 
induce  many  witnesses  to  speak  the  truth  will  not  operate  upon  the 
mind  of  an  expert ;  if  he  falsifies  he  need  not  fear  detection,  for  he 
does  not  speak  of  facts,  but  his  own  opinion.  It  would  be  dangerous 
to  create  such  a  class  of  witnesses,  who  would  be  operated  upon  by 
their  own  fancied  ingenuity  or  dexterity  in  detection.  The  doctrine 
is  repudiated  in  2  Stark.  Ev.  658. 

5th  bill.  Circumstances  unconnected  with  the  paper  alleged  to  be 
forged,  is  incompetent  evidence:  Norris'  Peake  154. 

6th  bill.  It  is  competent  for  the  court  to  withdraw  illegal  evi- 
dence from  the  consideration  of  the  jury ;  and  that  the  evidence 
was  illegal,  is  argued  in  the  foregoing  bills. 

7th  bill.  'It  had  appeared  in  evidence  that  at  the  time  the  inven- 
tory was  taken,  Mr.  Ilaldeman,  one  of  the  present  plaintiffs,  who  is 
also  one  of  the  heirs,  was  present,  and  saw  the  balance  struck  in 
the  testator's  bank  book,  predicated  upon  the  allowance  of  the 
amount  of  this  check  to  the  bank  ;  and  the  testimony  offered  and 
rejected  by  the  court  was  for  the  purpose  of  establishing  the  fact 
that  he  had  acquiesced  in  that  settlement  by  permitting  the  admin- 
istration account  of  the  executors  to  be  settled  without  objection, 
predicated,  as  to  that  part  of  the  administration,  upon  the  settle- 
ment made  by  Mr.  Coleman  with  the  bank  several  years  before, 
which  ought  to  have  had  a  powerful  influence  upon  the  jury. 

8th  bill.  The  testimony  was  not  rebutting. 

Oth  bill.  (To  the  charge  of  the  court.) 

1st,  2d,  3d  arid  4th  points.  The  duties  of  an  administrator  de 
bonin  nan  are  limited  to  the  management  of  such  goods  of  the  tes- 
tator or  intestate,  as  have  not  been  administered  by  the  executor  or 
previous  administrator,  or  mixed  with  his  own  ;  and,  therefore,  the 
subject-matter  of  this  suit  having  been  acted  upon  and  settled  by 
the  executor,  the  administrator  dc  Ionia  non  has  no  power  over  it : 
3  Bac.  Ab.  19;  Grout  v.  Chamberlain,  4  Mass.  611.  If  the  exec- 
utor erred  in  that  settlement,  the  heirs  may  look  to  him  to  correct 
that  error  as  it  respects  their  interest:  Allen  v.  Irwin,  1  S.  &  R. 
549.  The  act  of  an  executor  is  conclusive  upon  all  persons  inter- 
ested in  the  estate:  Jacob  i1.  Ilarwood,  2  Ves.  267;  Nugent  v. 
Giffard,  1  Atk.  463 ;  Moore's  Cases  494.  In  Packman's  Case,  6 
Coke  19,  it  is  decided  that  the  act  of  an  executor,  although  fraud- 
ulent, is  binding  against  the  second  administrator,  but  it  is  other- 


Dec.  1829.]  OF  PENNSYLVANIA.  175 

[Bank  of  Pennsylvania  v.  Jacobs.] 

wise  as  to  creditors.  If  there  had  been  collusion  between  the  bank 
and  William  Coleman,  the  executor,  or  if.it  had  been  a  mere  gift 
by  the  latter  to  the  former,  the  heirs  or  legatees  may  pursue  the 
fund  into  the  hands  of  the  bank ;  but  there  is  no  necessity  for  the 
interference  of  the  administrator  de  bonis  non,  for  the  fund  has 
alrea'dy  been  passed  upon,  administered,  by  the  personal,  legal  rep- 
resentative of  the  estate  :  Petre  v.  Clark,  11  S.  &  II.  377  ;  Skinner 
143;  Com.  Dig.  271,  tit.  Administrator;  2  Eq.  Ca.  Ab.  424.  If 
an  executor  settles  a  claim  of  the  estate,  and  takes  from  the  debtor 
his  note  for  a  balance  due,  the  administrator  de  bonis  non  can 
never  recover  that  balance  from  the  executor  or  his  representative : 
Wankford  v.  Wankford,  2  Salk.  306 ;  2  Veritris  502 ;  Vernon  173. 
Upon  the  settlement  between  the  bank  and  the  executor,  taking  the 
mistake  for  granted,  the  bank  had  and  received  the  money  for  the 
use  of  the  executor,  and  on  this  ground  the  administrator  de  bonis 
non  cannot  recover. 

5th  point.  When  the  settlement  took  place  between  the  executor 
and  the  bank,  each  party  had  a  full  knowledge  of  all  the  facts ;  and 
upon  that  knowledge  the  executor  exercised  his  discretion  and 
allowed  this  check  to  be  credited  to  the  bank  ;  and  the  matter  thus 
rested  for  four  years  arid  upwards,  by  which  the  bank  was  lulled 
into  security,  and  all  hope  of  detecting  the  forger  and  saving  itself 
was  gone  when  this  suit  was  brought ;  may  not  the  defendant,  under 
these  circumstances,  ex  equo  et  bono,  now  refuse  to  pay  the  money? 
On  this  point  were  cited,  Levy  v.  The  Bank  of  the  United  States, 
1  Binn.  27 ;  Morris  v.  Tarin,  1  Dall.  147  ;  Rapalje  v.  Emory,  2 
Id.  51.  Money  cannot  be  recovered  from  a  defendant,  which  good 
conscience  does  not  require  him  to  refund  :  Willing  r.  Peters,  12  S. 
&  R.  177  ;  Deichman  v.  Northampton  Bank,  1  Rawle  54. 

Gth,  7th,  8th  and  9th  points  have  been  argued  in  the  first,  second 
and  third  bills  of  exception. 

There  is  a  misjoinder  of  counts  in  the  declaration.  The  promise 
to  pay  is  the  subject-matter  of  the  action,  upon  which  the  right  to 
recover  must  depend :  the  first  count  lays  the  promise  to  have  been 
made  by  the  defendant  to  Samuel  Jacobs  in  his  lifetime  ;  the  second 
lays  it  to  have  been  made  to  his  administrators,  the  present  plain- 
tiffs, in  1823.  Such  counts  cannot  be  joined:  2  Saund.  117  ;  Ben- 
net  v.  Verdeen,  2  Ld.  Raym.  841  ;  1  Arch.  Prac.  59,  60;  2  Penn. 
Prac.  397.  In  all  cases  of  promises  made  to  or  by  an  executor  or 
administrator,  after  the  death  of  the  testator  or  intestate,  the  action 
is  personal,  and  therefore  different  from  an  action  upon  a  promise 
by  or  to  the  testator,  where  the  action  must  be  in  the  representative 
character:  Grier  v.  Huston,  8  S.  &  R.  402  ;  Wolfersberger  r.  llurher, 
10  Id.  11-13.  The  misjoinder  is  not  cured  by  the  verdict :  Stro- 
hecker  r.  Grant,  16  S.  &  11.  237. 

Suppose  the  verdict  to  have  been  for  the  defendant,  what  would 


176  SUPREME  COURT  {Lancaster 

[Bonk  of  Pennsylvania  v.  Jacobs.  | 

be  the  judgment  thereon  as  respects  costs  ?  On  the  first  count  the 
judgment  for  costs  would  have  been  against  the  estate ;  on  the 
second,  it  would  have  been  against  the  administrators  personally. 

Porter  and  Ellmaker,  for  defendant  in  error. — 1st  bill.  The 
identity  of  the  checks  was  a  matter  of  fact  for  the  jury,  and  the 
court  could  not  have  withheld  them  on  the  ground  that  sufficient 
evidence  had  not  been  given  to  satisfy  the  jury  that  they  were  the 
same  which  the  executor  had  received  out  of  bank.  The  checks 
had  been  in  the  possession  of  the  plaintiffs  in  this  suit,  who  could 
not  have  been  examined.  The  Commonwealth  v.  Kinnison,  4  Mass. 
G46,  is  a  criminal  case,  wherein  strictness  is  required,  and  is  not 
applicable  to  this  principle  involved  in  a  civil  suit.  It  was  alleged 
by  the  plaintiffs  that  the  check  of  the  22d  March  1819,  in  question, 
was  made  in  the  bank,  by  tracing  the  handwriting  of  Mr.  Jacobs 
from  the  other  checks,  hence  the  importance  of  letting  all  the  checks 
go  to  the  jury. 

2d  bill.  The  evidence  offered,  and  to  which  exception  was 
taken,  was  not  matter  of  opinion  derived  from  a  comparison  of 
handwriting,  but  was  the  judgment  of  the  witness,  predicated 
upon  his  knowledge  of  the  handwriting  of  Mr.  Jacobs,  aided  by  a 
comparison  of  the  alleged  forgery  with  genuine  signatures ;  being 
a  much  stronger  and  more  satisfactory  kind  of  evidence  than 
knowledge  without  the  aid  of  a  refreshed  memory.  The  case 
of  Vickroy  v.  Kelly,  14  S.  &  R.  372,  is  that  a  comparison  of 
handwriting  alone  is  not  evidence  in  case  of  a  public  officer ;  from 
which  the  inference  is  strong  that  if  connected,  as  in  this  case, 
with  actual  knowledge  of  the  handwriting,  it  is  good  evidence.  On 
this  point  were  cited,  Farmers'  Bank  v.  Whitehill,  10  S.  &  11.  110 ; 
Homer  v.  Wallis,  11  Mass.  309.  But  what  rendered  the  evidence 
peculiarly  proper,  was  that  we  alleged  that  the  check  in  question 
was  traced  from  the  other  checks. 

3d  bill.  A  person  who  is  an  expert  may  be  permitted  to  testify 
whether  a  writing  is  a  traced  hand  or  original  and  genuine  :  Lodge 
v.  Phiphcr,  11  S.  &  R.  333;  Hubley  v.  Vanhorn,  7  Id.  185.  But 
even  if  the  Court  of  Common  Pleas  should  have  been  in  error  in 
the  admission  of  this  evidence,  under  the  circumstances  this  court 
will  not  reverse  the  judgment  on  that  ground,  for  no  evidence  was 
given  by  the  plaintiffs  in  pursuance  of  their  offer,  by  which  the  de- 
fendant was  prejudiced. 

4th  bill.  The  evidence  offered  was  merely  to  show  the  original 
state  of  the  check  of  the  21st  March  1819,  from  which  as  to  the 
word  "March,"  we  alleged  the  check  in  controversy  was  traced. 

oth  bill.  It  would  be  strange,  indeed,  if  no  evidence  dehors  the 
paper  alleged  to  be  forged,  would  be  competent  to  prove  the 
forgery.  Other  evidence  may  be  absolutely  conclusive,  such  aa 


Dee.  1829.]  OF  PENNSYLVANIA.  177 

[Bank  of  Pennsylvania  v.  Jacobn.j 

proof  that  the  person  whose  name  is  alleged  to  be  forged  was  sick, 
hud  his  arm  broken,  was  out  of  the  county  or  was  under  some 
other  disability  ;  and  the  cireurnstarice  of  evidence  being  clear  and 
satisfactory  upon  the  point  of  inquiry,  is  a  good  reason  to  conclude 
that  it  is  legal. 

7th  bill.  This  evidence  was  irrelevant — there  is  no  mention 
made,  either  in  the  inventory  or  administration  account  of  the 
check  in  question  or  the  money  in  the  Bank  of  Pennsylvania — the 
inventory  was  made  on  the  22d  June  1819,  and  the  settlement 
with  the  bank  not  until  the  2d  July  following.  The  evidence 
would  have  had  a  tendency  to  embarrass,  rather  than  to  elucidate 
the  case. 

8th  bill.  If  it  was  important  for  the  defendant  to  give  in  evidence, 
by  Mr.  Ogilby,  that  the  check  in  question  was  paid  to  a  boy,  it 
was  equally  important  for  the  plaintiffs  to  prove  that  Mr.  Ogilby 
was  mistaken,  that  it  was  another  check,  in  favor  of  another 
person,  that  was  paid  to  a  boy  ;  which  was  the  evidence  offered  and 
given. 

9th  bill.  (To  the  charge  of  the  court.) 

As  to  the  duties  of  an  administrator  de  bonis  non,  were  cited  the 
Stat.  17  Car.  2,  which  is  in  force  in  Pennsylvania ;  Turner  v.  Da- 
vies,  2  Saund.  149;  3  Bac.  Abr.  20.  When  an  executor  actually 
administers  a  fund  or  part  of  the  assets  of  the  estate,  the  adminis- 
trator de  bonis  non  would  afterwards  have  nothing  to  do  with  it : 
but  the  money  now  claimed  by  the  plaintiffs  never  was  adminis- 
tered by  the  executors ;  on  the  contrary,  they  disclaimed  having 
anything  to  do  with  it,  "unless  the  heirs  would  furnish  them  proof 
to  establish  their  right  to  recover  it,"  which  was  not  done.  Cer- 
tainly, if  the  heirs  had  furnished  that  proof  to  the  executors  at  any 
time  before  they  went  out  of  office,  they  could  have  maintained  the 
action,  and  if  the  right  of  action  existed  in  the  executors  when  they 
went  out  of  oilice,  it  survives  to  the  administrators  dt'  bonis  non. 
An  executor,  having  in  his  possession  a  bond  due  to  his  testator, 
demands  the  amount  from  the  obligor,  who  produces  the  receipt  of 
the  obligee  in  full,  with  which  the  executor  is  satisfied,  and  so  ex- 
presses himself;  can  it  be,  that,  after  the  death  or  resignatioii  of 
the  executor,  the  administrator  dc  bonix  non,  upon  the  discovery 
that  the  receipt  is  a  forgery,  cannot  sustain  a  suit  upon  the  bond  '.' 
That  case  and  the  one  before  the  court  seem  to  be  parallel  as 
respects  this  point.  If  then  the  facts  turn  out  to  be  such,  as  that 
the  money  is  recoverable  from  the  bank,  who  but  the  administrator 
dc  bout's  non  can  sustain  the  action? — not  the  heirs,  for  if  the 
estate  should  turn  out  to  be  insolvent  they  should  not  have  the 
money — and  not  the  creditors,  for  it  could  not  be  determined  whirli 
of  them  would  be  entitled.  If  this  suit  is  not  rightly  brought,  it 
follows  that  the  estate  of  Mr.  Jacobs  is  entitled  to  the  money,  and. 
has  no  remedy  to  recover  it. 

I  i>.  &  W.— 12 


178  SUPREME  COURT 

[Bank  of  Pennsylvania  v.  Jacobs.] 

10th  error.  The  money  recovered  upon  either  of  the  counts  in 
the  declaration  would  be  assets  of  the  estate  ;  they  are  therefore 
rightly  joined :  Malin  v.  Bull,  13  S.  &  11.  441 ;  Stevens  v.  Gregg. 
10  Id.  234 ;  Strohecker  v.  Grant,  1G  Id.  237. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — The  defendants  in  error,  who  were  plaintiffs  below, 
brought  an  action  of  assurnpsit,  for  money  had  and  received,  against 
the  plaintiffs  in  error.  The  cause  was  tried  on  the  plea  of  non- 
assurnpsit,  and  payment  with  leave  to  give  the  special  matters  in 
evidence.  On  the  trial,  various  bills  of  exceptions  were  taken  by 
the  defendants,  to  the  admission  and  rejection  of  testimony,  and  to 
the  charge  of  the  court.  It  became  necessary  to  decide  whether 
a  certain  paper,  purporting  to  be  a  check,  on  the  Office  of  Discount 
and  Deposite  for  $2500,  dated  the  22d  of  March  1819,  signed 
"Samuel  Jacobs,"  payable  to  himself  or  bearer,  and  which  was  ac- 
tually paid  at  the  office,  was  a  genuine  check  or  not.  The  defend- 
ants in  error  alleged  that  this  paper  was  a  forgery,  and  to  prove 
their  allegation,  it  was  necessary  to  establish  its  identity  ;  or  in  other 
words,  that  the  paper  offered  in  evidence  was  the  same  which  was 
received  and  paid  in  bank.  Mr.  Ogilby,  cashier  of  the  bank,  de- 
clares that  the  bank  paid  the  check  to  a  little  boy,  on  the  29th 
March  1819.  On  Thursday,  the  25th  of  March  1819,  in  the 
afternoon,  Samuel  Jacobs  was  violently  attacked  with  a  cramp  in 
the  stomach,  took  to  his  room,  and  did  not  leave  it  until  he  was  a 
corpse — he  died  on  the  14th  of  April  1819.  On  the  5th  of  June 
following,  William  Coleman,  one  of  the  executors  of  Samuel  Jacobs, 
deceased,  took  his  bank  book  to  the  bank  to  ascertain  the  balance 
due  him  ;  the  cashier  settled  the  book  and  returned  it  to  him,  to- 
gether with  this  and  other  checks.  These  checks  were  afterwards 
given  to  Jacob  M.  Ilaldeman,  and  by  him  to  others.  After  the 
plaintiffs  had  proved,  by  Mr.  Ogilby,  the  cashier,  Samuel  Jacobs  s 
bank  book,  the  various  entries  of  credits  in  it  (enumerated  all  in 
the  state  of  the  case),  the  settlement  made  in  it  on  the  5th  of  June 
1819,  and  that  he,  the  cashier,  presumed  the  checks  produced  to  be 
the  same  checks  he  had  given  up  to  William  Coleman,  that  he  knew 
nothing  to  the  contrary,  but  believed  the  checks  to  be  the  same, 
and  that  he  had  filled  up  the  one  of  the  1st  of  March  1M9,  for 
^2000,  at  the  counter  of  the  bank — they  offered  to  read  to  the  jury 
the  above-stated  entries  in  the  bank  book  and  the  checks  aforesaid. 
To  this  offer,  so  far  as  respected  the  reading  of  the  checks  to  the 
jury,  the  defendant's  counsel  objected.  The  court  overruled  the 
objection  and  permitted  the  whole  to  be  read — and  this  forms  the 
first  bill  of  exceptions.  It  is  contended  that  the  papers  admitted, 
had  not  been  sufficiently  identified,  that  the  question  was  whether 
the  check  was  a  forged  one  or  not,  and  that  therefore  it  could  not 


Dec.  1829.]  OF  PENNSYLVANIA.  179 

[Bank  of  Pennsylvania  ».  Jacobs.] 

be  read  to  the  jury,  unless  all  were  called  in  whose  hands  it  had 
been,  nor  unless  the  witness  had  marked  the  check  before  he  had 
parted  with  it.  It  is  true  the  question  was  whether  the  check  was 
forged,  but  that  question  was  for  the  jury,  and  therefore  the  evi- 
dence offered,  was  clearly  admissible  to  establish  the  point  of  iden- 
tity which  was  involved  in  it.  Whether  it  was  satisfactory  and 
sufficient  for  that  purpose,  it  was  for  the  jury  to  decide;  but  being 
relevant,  the  court  could  not  do  otherwise  than  refer  it  to  them, 
with  the  check,  in  order  that  they  might  exercise  their  judgments 
upon  that  point,  as  well  as  upon  the  principal  question.  We  are 
of  opinion  that  the  evidence  was  sufficient  to  entitle  the  plaintiffs 
to  read  the  checks  to  the  jury.  After  the  plaintiffs  had  read  to 
the  jury  the  several  checks,  six  in  number,  including  the  check 
alleged  to  have  been  forged;  and  had  proved  by  John  Forster  that 
he  had  seen  Samuel  Jacobs  write  frequently — draw  checks  in  bank  ; 
that  from  the  opportunity  which  had  been  given  to  him  to  examine 
this  check  (having  looked  again  at  all  the  six  checks),  he  believed 
no  part  of  it  to  be  in  the  handwriting  of  Samuel  Jacobs,  and  also, 
that  he  had  been  in  the  habit  of  corresponding  for  many  years  with 
him  on  business — and  had  proved  by  Henry  Alward  that  he  had 
seen  the  late  Samuel  Jacobs  write,  and  that  from  the  knowledge  he 
had  of  his  handwriting,  and  taking  every  part  of  the  check,  he 
would  say  it  was  not  his  hand,  and  taking  the  whole  check  as  it 
appeared,  date,  filling  up  and  signature,  he  would  say  it  was  not 
his  handwriting,  and  had  proved  by  Joseph  Wallace  that  he  had 
often  seen  Samuel  Jacobs  write,  had  dealt  with  him  during  the 
years  1812,  1813  and  1814,  and  received  many  letters  from  him, 
and  seen  him  sign  receipts  for  money  paid,  and  that  from  his  knowl- 
edge of  the  handwriting  of  Samuel  Jacobs  (and  after  looking  at  the 
check  of  22d  of  March  1819),  taking  the  whole  of  it  together,  he 
believed  it  not  genuine ;  the  plaintiffs  offered  to  ask  Mr.  Forster, 
"  from  your  knowledge  of  the  handwriting  of  Samuel  Jacobs,  and 
from  comparing  the  check  of  March  22d  1819,  with  those  parts  of 
the  check  of  January  20th,  January  21st,  February  4th,  March  the 
1st,  and  March  21st  1819,  which  you  have  stated  to  be  in  his  hand- 
writing, what  is  your  opinion  and  belief  as  to  the  signature  and 
body  of  the  check  of  March  22d  1819,  being  in  the  handwriting  of 
Samuel  Jacobs?"  To  the  offer  so  made,  the  defendant's  counsel 
objected,  but  the  court  allowed  the  question  to  be  put,  and  this  on 
the  second  bill  of  exceptions,  is  assigned  for  error.  The  question 
was  properly  allowed  to  be  asked,  according  to  the  opinion  of  this 
court,  in  the  case  of  the  Farmers'  Bank  of  Lancaster  v.  Whitehall, 
10  S.  &  K.  110,  in  which  it  was  decided  that  comparison  of  hand- 
writing was  admissible  in  evidence  in  civil  cases,  whore  it  was  in 
corroboration  of  other  evidence,  which  tended  strongly  to  support 
the  fact  in  dispute.  Three  witnesses,  Mr.  Forster  being  one,  had 


180  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  r.  Jacobs.] 

declared  the  check  not  to  be  the  handwriting  of  Samuel  Jacobs; 
the  proposed  offer  was  not  to  establish  solely  from  comparison  of 
hands,  that  the  check  was  a  forgery,  but  in  confirmation  of  other 
testimony  already  received,  strongly  tending  to  the  same  point,  tc 
show  that  the  signature  and  body  of  the  check  of  the  22d  March 
1819,  was  not  the  handwriting  of  Samuel  Jacobs.  Under  such  cir- 
cumstances then,  I  apprehend,  it  was  competent  evidence  to  go  to 
the  jury,  and  after  the  opinion  and  belief  of  the  witness  was  known, 
for  him  to  compare  the  contested  signature  with  other  writings  ad- 
mitted to  be  genuine.  It  would  seem  to  me  that  where  a  witness 
has  seen  the  person  write,  and  declares  he  knows  his  writing,  he 
may  compare  it  with  writings  which  he  has  seen  the  person  write, 
or  which  are  admitted  he  wrote,  and  he  may  give  his  opinion  and 
belief  on  the  comparison,  at  least  such  testimony,  may  go  to  the 
jury,  who,  and  they  only,  are  to  compare  and  decide  whether  the 
witness  is  correct  or  not  as  to  the  writing  in  controversy.  The  court 
below  then  were  right  in  permitting  the  question  to  be  asked.1 

I  come  to  the  third  bill  of  exceptions.  After  the  court  had 
allowed  the  check  to  be  thus  compared  with  other  genuine  checks, 
and  the  jury  to  hear  the  opinion  and  belief  of  Mr.  Forster  in  rela- 
tion to  it,  the  counsel  for  the  plaintiffs  proposed  to  go  a  step  further, 
and  to  prove  "  that  John  Eberman  is,  and  has  been  cashier  of  the 
Farmers'  Bank  of  Lancaster  for  twelve  years  ;  that  William  White 
was  cashier  of  the  Lancaster  Bank  for  seven  years,  prior  to  October 
1824;  that  John  Schmidt  is,  .and  has  been  cashier  of  the  York 
Bank  for  ten  years ;  and  that  the  said  Eberman,  White  and  Schmidt 
are,  and  have  been,  for  the  said  number  of  years,  experienced  and 
skilled  in  the  examination  of  bank  notes,  checks  and  other  writings, 
with  a  view,  and  for  the  purpose  of  detecting  forgeries,  and  that  in 
their  opinion  and  belief,  the  part  of  the  check  of  March  22d  1819, 
which  is  in  writing,  is  written  in  an  imitated  character  or  traced 
hand."2  And  this  the  court  admitted  them  to  prove,  though 
objected  to  by  the  defendant's  counsel.  It  was,  in  fact,  permitting 
experts,  as  they  are  called,  who  never  sYiw  Mr.  Jacobs  write,  from 
their  professed  knowledge  or  skill  in  handwriting,  to  prove  solely, 
from  comparison,  whether  what  purported  to  be  the  handwriting  of 
Mr.  Jacobs  in  the  disputed  check  was  counterfeit  or  not.  This 
cannot  lawfully  be  done.  It  would  have  been  error  had  the  witness 
actually  proved  what  was  proposed  to  be  proved  by  them.  This 
opinion  is  fortified  by  the  decision  in  Lodge  and  another  v.  Phipher 
and  Lloyd,  11  S.  &  R.  33#.  The  question  there,  was,  whether  a 
receipt  in  the  name  of  Reuben  Haines  was  forged  or  not;  it  was 

.  l   Sec,  however,  Travis  r.  Brown,  7  Wr.  0. 

1  An  expert  can  testify  ax  a  pure  matter  of  pcicnre,  whether  the  writing  in 
question  is  feigned  and  simulated,  or  natural  and  genuine  :  Travis  v.  Brown, 
7  Wr.  9. 


Dec.  1829.]  OF  PENNSYLVANIA.  181 

[Bank  of  Pennsylvania  v.  Jacobs.] 

alleged  to  have  been  forged  by  a  certain  William  Shaw,  deceased. 
The  court  below  permitted  Israel  Pleasants,  on  the  ground  of  his 
being  an  expert  in  the  examination  of  writings,  to  give  his  opinion, 
whether  the  receipt  and  the  papers  proved  to  have  been  written  by 
Shaw,  were  the  same  handwriting.  This,  says  the  late  chief 
justice,  was  giving  very  great  weight  to  matter  of  opinion,  greater, 
I  think,  than  it  was  entitled  to,  for  Pleasants  did  not  pretend  to 
know  anything  of  the  handwriting  of  Ilaines  or  Shaw,  nor  did  he 
form  any  opinion,  but  from  the  naked  comparison  of  hands.  The 
judgment  was  therefore  reversed. 

The  case  under  consideration,  up  to  the  time  of  this  offer,  had 
been  placed  before  the  jury  on  the  evidence  of  those  who  could 
legally  give  some  direct  testimony,  and  on  legal  proof  by  com- 
parison of  this  check  with  the  others.  But  if  witnesses  were  to  be 
called  in,  and  asked  on  oath,  what  conclusions  they  would  draw,  it 
would,  in  fact,  be  adding  so  many  men  to  the  jury,  in  other  words, 
it  would  be  permitting  others  to  advise  the  jury  what  verdict  they 
should  render ;  it  would  not  be  trying  the  cause  by  twelve  men 
returned  by  the  sheriff  drawn  and  sworn,  but  by  them,  together 
with  as  many  others  as  a  party  could  find,  who  would  swear  that 
the  evidence  was  or  was  not  satisfactory  to  their  minds.  It  appears, 
however,  that  when  the  witnesses  were  examined,  they  could  not,  arid 
did  not  prove  what  was  proposed ;  for  Eberman  testified,  that  from 
the  appearance  of  the  check,  he  would  not  say  that  it  was  imitated; 
and  Schmidt  that  he  would  not  undertake  to  say,  whether  it  was 
a  fair  or  a  traced  hand.  White  was  not  called.  So  that  it  is 
evident  the  defendants  suffered  no  injury  from  this  decision  of  the 
District  Court.  Now  in  Allen  v.  Rostain,  11  S.  &  K.  302 ;  it 
is  said  to  be  a  general  and  well-known  principle,  that  one  shall  not 
assign  that  for  error,  from  which  he  has  suffered  no  injury,  for  the 
administration  of  justice  is  not  promoted  by  reversing  a  judgment 
for  an  error  by  which  no  injury  has  been  sustained.  However 
improper,  therefore,  the  proposed  testimony  would  have  been,  yet 
not  being  given,  the  opinioh  of  the  court  below,  as  to  its  admissi- 
bility,  cannot  be  assigned  for  error;  nor  can  the  judgment  on  this 
ground  be  reversed. 

As  to  the  error  assigned  in  the  fourth  bill  of  exceptions :  the 
plaintiffs  offered  to  prove  on  the  trial  the  actual  state  of  the  check 
of  the  21st  of  March  1819,  in  the  beginning  of  the  year  1824, 
that  at  that  time,  in  the  word  "March,"  the  letter  "//"  had  a 
singular  turn  at  the  end  of  it,  that  it  was  then  touched  with  a  pen- 
knife to  ascertain  whether  it  was  ink  or  some  other  substance  which 
adhered  to  it,  and  on  this  touch  it  came  off,  the  mark  of  which 
being  still  visible  on  the  paper :  and  that  the  said  mark  was  pre- 
cisely similar  to  the  mark  at  the  end  of  the  " h"  in  the  word 
"March,"  on  the  check  of  the  22d  of  March  1819,  for  §2000.  In 


182  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  v.  Jacobs.] 

the  admission  of  this  proof,  I  cannot  perceive  any  error.  These 
circumstances  conduced  to  establish  the  forgery,  and  were  therefore 
properly  laid  before  the  jury. 

The  fifth  error  assigned  demands  only  a  passing  remark.  The 
plaintiffs  having  given  proof  of  Mr.  Jacobs's  money  concerns  and 
payments,  that  he  was  a  man  of  great  accuracy  in  regard  to  his 
money,  both  as  to  receiving  and  paying  it  out,  and  that  no  traces 
could  be  found  of  having  paid  away  this  money,  offered  to  prove 
by  Christian  Brubaker,  that  in  the  winter  or  spring  of  1819,  as 
executor  of  one  Kyser,  he  sold  a  plantation  to  Samuel  Jacobs  for 
$4000,  payable  on  the  1st  of  April  1819,  that  the  witness  wanted 
money  to  loan  to  his  brother,  and  went  to  Mr.  Jacobs,  and  received 
in  advance  $1000,  on  the  22d  of  March  1819,  by  a  check  on  the 
same  bank  at  Lancaster}  offered  to  be  shown,  and  erroneously  dated 
the  21st  of  March  1819  ;  that  soon  after  that  Mr.  Jacobs  took  sick, 
and  witness  never  saw  him  again ;  that  witness  went  to  his  house, 
on  the  1st  of  April  1819,  but  found  him  so  sick  that  he  did  not  see 
him,  nor  ask  to  see  him,  that  the  balance  of  the  money  due  the 
witness  was  paid  in  cash  by  William  Coleman  after  Mr.  Jacobs's 
death.  Why  this  was  objected  to,  I  am  at  a  loss  to  conceive.  It 
was  evidence,  even  if  it  weighed  but  a  feather,  in  the  cause;  when, 
however,  it  is  considered,  that  it  was  known  Mr.  Jacobs  had  bought 
from  Christian  Brubaker  land  for  $4000,  to  be  paid  on  the  1st  of 
April  1819,  and  that  he  had  actually  paid  him  in  advance  $1000, 
on  the  22d  of  March,  by  a  check  on  the  same  bank,  it  was  reason- 
able to  suppose  in  the  absence  of  proof  to  the  contrary,  that  he 
drew  the  check  of  the  22d  of  March  1819,  for  $2500,  for  the 
balance  of  Brubaker's  claim,  or  in  order  to  be  prepared  to  pay  him 
the  residue  of  the  $4000  on  the  1st  of  April  following,  according 
to  their  contract,  and  that,  therefore,  the  money  might  have  been 
drawn  by  himself  for  this  purpose.  Now  to  do  away  all  idea  of 
the  kind,  the  plaintiffs  offered  to  prove,  that  the  balance  of  the 
purchase-money  was  not  paid  by  Mr.  Jacobs,  but  by  Mr.  William 
Coleman,  after  Mr.  Jacobs's  death,  and  that  although  Mr.  Brubaker 
had  called  at  the  office  of  Mr.  Jacobs  for  it,  on  the  1st  of  April, 
yet  he  did  not  then  receive  it,  on  account  of  Mr.  Jacobs's  sickness 
and  consequent  inability  to  transact  business.  Viewing  the  testi- 
mony in  this  light,  1  think  it  was  correctly  admitted. 

The  sixth  error  has,  I  think,  been  abandoned.  If  not,  as  it  is  a 
mere  repetition  of  all  the  previous  alleged  errors,  on  which  the 
court  had  passed  their  opinion,  and  brings  up  no  new  matter,  it 
need  not  again  be  considered. 

I  proceed  then  to  the  consideration  of  the  seventh  error.  After 
the  plaintiffs  had  rested  their  cause,  the  defendants,  on  their  part, 
proved  by  Joseph  Ogilby,  that  on  the  29th  March  1819,  a  check, 
(the  one  in  question),  drawn  by  Samuel  Jacobs,  dated  the  22d  of 


Dec.  1829.]  OF  PENNSYLVANIA.  183 

IBank  of  Pennsylvania  v.  Jacobs.] 

March  1819,  payable  to  himself  or  bearer,  for  $2500,  was  presented 
by  a  boy,  arid  paid  by  Mr.  Ogilby  to  him  at  the  bank ;  and  that  on 
the  5th  of  June  following,  William  Coletnan  brought  Mr.  Jacobs's 
bank  book  to  the  bank,  and  had  the  balariee  due  to  him  struek,  or 
settled  by  Mr.  Ogilby,  who  returned  Mr.  Colemari  the  checks  set 
down  in  it ;  that  on  the  second  of  July  next  after,  Mr.  Coleman 
brought  the  bank  book  and  checks  to  the  bank,  and  told  Mr.  Ogilby 
some  of  Mr.  Jacobs's  heirs  doubted  the  check  of  $2500,  arid  thought 
it  not  genuine,  that  he  thereupon  examined  it  carefully,  thought  it 
was  Mr.  Jacobs's  handwriting,  and  still  thought  so  ;  that  Mr.  Cole- 
rnan,  was  of  the  same  opinion,  and  said  the  heirs  wished  to  bring 
suit  against  the  bank,  to  recover  the  money,  but  that  he  would  not 
do  it,  unless  they  could  produce  some  proof  to  him ;  that  Mr.  Cole- 
man  took  the  book  and  checks  and  went  away,  that  on  the  same, 
2d  of  July,  the  balance  to  the  credit  of  Samuel  Jacobs  was 
$2587.69,  that  on  that  day  they  settled  the  book,  and  transferred 
the  balance  to  the  account  of  William  arid  James  Coleman,  as 
executors  of  Samuel  Jacobs,  deceased.  The  defendants  also  gave 
in  evidence  the  correspondence  between  Thomas  Elder,  on  behalf 
of  the  heirs,  and  the  officers  of  the  bank,  commencing  on  the  20th  of 
February  and  ending  on  the  25th  of  July  1821 ;  and  then  offered, 
after  the  evidence  already  stated,  the  inventory  exhibited  on  the 
22d  of  May  1819,  by  William  and  James  Coleman,  executors  of 
Samuel  Jacobs,  deceased,  to  the  register  of  the  county  of  Lebanon, 
arid  also  the  administration  account  of  the  same  executors,  exhibited 
the  1st  of  December  1820,  and  finally  passed  and  confirmed  on  the 
3d  of  January  1821,  and  in  connection  with  them  a  receipt  and 
acquitance  from  Jacob  M.  Ilaldeman  and  Richard  T.  Jacobs,  admin- 
istrators de  boms  non,  then  appointed,  bearing  date  the  3d  of  Janu- 
ary 1821,  the  said  receipt  and  acquittance  having  been  given  by 
the  said  administrators  de  bouts  non,  to  the  aforesaid  executors,  as 
appeared  by  the  same  papers ;  to  all  which  the  plaintiffs'  counsel 
objected,  and  were  sustained  in  their  objection  by  the  court,  who 
overruled  the  said  testimony  thus  offered.  The  defendants  in  error 
contend,  that  these  papers,  being  wholly  irrelevant  to  the  matter  in 
issue,  and  only  calculated  to  embarrass  the  cause,  the  court  wero 
right  in  rejecting  them.  In  this  I  agree  with  them,  for  neither  to 
the  court  below,  nor  to  this  court  has  any  the  least  relevancy  been 
shown.  It  cannot  be  pretended,  that  any  of  the  papers  show  on 
their  face,  that  the  $2500,  were  included,  or  mentioned  in  them, 
nor  can  anything,  relative  to  the  bank,  or  this  money  be  shown 
from  the  most  minute  examination  of  them.  The  plaintiffs  in  error 
admit  themselves,  that  the  $2500  were  not  included  in  the  inven- 
tory, administration  account  or  receipt,  as  their  whole  defence  was 
rested  on  the  ground  that  William  Coleman,  the  executor,  did  not 
receive  the  $2500  from  the  bank,  but  allowed  that  sum  to  the  bank 
on  the  settlement  of  the  bank  book  on  the  5th  of  June  1819. 


184  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  v.  Jacobs.] 

Again,  the  third  and  fifth  points  put  to  the  court  by  the  plaintiffs 
in  error  aver  distinctly,  that  the  $2500  were  not  received  by 
William  Coletnan,  and  the  fifth  point  says,  that  the  money  *'  was 
voluntarily  settled  for  and  paid  by  the  executors  of  Samuel  Jacobs, 
deceased,  to  the  present  defendants." 

How,  then,  on  the  defendant's  own  grounds,  could  the  $2500 
have  been  included  in  the  inventory,  administration  account,  or 
receipt?  The  receipt  is  merely  a  receipt  for  so  much  as  was  in  the 
executors  hands.  If  it  be  said,  that  these  papers  were  evidence  to 
show  that  the  executors  had  settled  an  account  of  some  kind,  my 
answer  is,  that  this  was  shown  fully,  and  admitted  by  the  plaintiffs 
below,  by  the  letters  of  administration  de  bonis  non,  given  in  evi- 
dence by  them. 

The  recitals  in  those  letters  of  administration  must  be  taken  to  be 
true,  and  show  that  the  executors  had  settled  an  account,  that  this 
account  had  been  approved  by  the  proper  court,  and  that  they  had 
been  duly  dismissed.  And  this  appears  fully  from  the  fourth  point 
put  by  the  defendants  below  to  the  court.  Indeed  the  answer  of 
the  court  to  the  defendants'  fourth  point  is  a  complete  answer  to 
the  seventh  bill  of  exceptions,  about  the  rejection  of  these  papers. 
The  court  in  their  answer  say,  "  That  the  recitals  in  the  letters  of 
administration  de  bonis  non,  given  in  evidence  by  the  plaintiffs, 
must  be  taken  to  be  true.  They  show  that  before  the  granting  of 
them,  the  executors  had  settled  their  account,  as  stated  in  this 
point.  The  presumption  of  law  is,  that  the  account  so  settled  by 
the  executors  contained  a  full  and  perfect  account  of  all  the  assets 
of  the  deceased,  which  had  come  to  their  hands  at  the  time  they 
were  discharged  from  their  trust,  and  that  it  was  duly  settled  and 
approved  by  the  proper  authority. 

Whether  the  settling  of  the  administration  account  by  the  execu- 
tors, as  stated  in  this  point,  was  an  administration  of  the  part  of  the 
assets  of  the  deceased  now  in  question  in  this  suit,  depends  on  the 
fact  whether  the  $2500  mentioned  in  the  check  in  question  had 
previously  to  that  time  come  to  the  hands  of  the  executors.  If 
they  had  received  the  money  in  question  from  the  bank,  the  plain- 
tiffs could  not  recover  in  this  suit,  whether  they  charged  themselves 
with  it  if  their  administration  account  or  not.  If  they  charged 
themselves  with  it  in  their  administration  account  settled  by  them, 
they  have  administered  on  it,  and  the  plaintiffs  cannot  recover, 
whether  they  have  received  it  of  the  bank  or  not.  If  they  neither 
received  it  from  the  bank,  nor  charged  themselves  with  it  in  their 
account,  then  the  settling  of  an  account,  as  mentioned  in  this  point, 
would  not  be  an  administration  on  this  part  of  the  assets  of  the 
deceased,  and  the  plaintiffs  are  not,  on  that  account,  prevented  from 
recovering."  The  acknowledged  ground  of  defence,  both  in  the 
court  below  and  in  this  court,  shows  that  these  papers  could  not 


Dec.  1829.J  OF  PENNSYLVANIA.  185 

[Bank  of  Pennsylvania  v.  Jacobs.] 

have  been  in  any  way  material  or  relevant,  and  therefore  there  was 
no  error  in  rejecting  them. 

A  word  as  to  the  eighth  bill  of  exceptions  will  suffice.  The 
defendant  had  proved  by  Mr.  Ogilby  that  the  check  of  32oOO  had 
been  paid  by  him  to  a  boy  or  young  lad  ;  the  plaintiffs  offered 
(and  as  I  understand  it,  in  order  to  show  that  Mr.  Ogilby  was  or 
might  be  mistaken  in  his  recollections  as  to  this)  to  prove  that 
Christian  Brubaker  gave  his  check  for  $1000,  dated  (though 
erroneously)  the  21st  of  March,  instead  of  the  22d  of  March  1811J, 
to  his  son  Benjamin  Brubaker,  who  came  to  Lancaster  to  draw  the 
money  sometime  in  the  latter  end  of  March  or  beginning  of  April 
1819,  and  when  lie  came  to  Lancaster  he  thought  there  might 
be  some  difficulty  in  getting  the  money  at  bank,  and  therefore 
went  to  Ober  &  Kline's  store,  and  requested  Mr.  Kline  to  send  a 
boy  (then  about  twelve  or  fourteen  years  of  age),  to  the  bank  for 
the  money,  who  returned  in  a  few  minutes  with  the  $1000,  the 
amount  of  the  check.  As  the  evidence  was  intended  to  show  a 
mistake  in  the  recollection  of  Mr.  Ogilby,  or  to  correct  the  mistake, 
if  any,  it  was  properly  offered,  nor  was  there  any  error  in  receiv- 
ing it  for  that  purpose. 

Having  thus  disposed  of  all  the  errors  assigned  respecting  the 
admission  and  rejection  of  evidence,  I  will  proceed  to  consider  the 
errors  assigned  in  the  answers  of  the  court  to  the  points  proposed 
by  the  counsel  for  the  defendants.  These  were  nine  in  number, 
and  the  court  were  requested  to  reduce  their  answers  to  writing 
and  file  them  of  record.  This  the  court  did,  and,  in  my  opinion, 
answered  fully  and  very  satisfactorily  each  and  every  point.  The 
first,  second  and  third  points  all  relate  to  one  subject,  to  wit,  on 
whom  the  settlement  of  the  estate  of  persons  (lying  testate  or  intes- 
tate devolves,  and  also  whether  an  administrator  </<;  bontx  -non  is 
confined  to  the  administration  of  that  portion  of  the  estate  which 
was  left  unadministered  by  his  predecessors. 

The  court  below  answered  that  the  settlement  of  such  estates 
belongs  to  and  devolves  on  the  executors,  and  the  administrator  dc 
bonts  non  is  confined  to  the  estate  unadministered  by  thorn.  I  sub- 
scribe entirely  to  the  correctness  of  the  answers  of  these  three 
points.  If  an  executor  settles  an  account  between. the  decedent  and 
a  third  person,  and  then  introduces  it  into  his  administration  ac- 
count, the  administrator  dc  bouts  non  has  nothin"  to  do  with  the 

O 

transaction,  because  the  executor  having  once  received  a  credit  for 
it  (or  if  he  be  charged  with  it),  it  is  to  be  considered  as  belonging 
to  that  portion  of  the  estate  which  has  been  administered  by  him: 
but  if,  on  the  other  hand,  the  executor  has  omitted  to  make  such 
settlement,  or  left  it  out  of  his  administration  account  for  any  cause, 
then  the  other  may,  indeed  must,  proceed  to  collect  or  pay,  in  other 
•words,  administer  the  claim  or  demand.  If  William  Coleman  and 


186  SUPREME  COURT  [Lancaster 

[Bank  of  Pennsylvania  c.  Jacobs.] 

his  co-executor  administered  the  §2500,  then  the  administrator  de 
bonia  nan  could  not  interfere  with  nor  touch  the  matter.  And  so, 
I  understand,  the  court  below  stated  the  law  to  the  jury,  at  the 
same  time  leaving  the  facts  arising  on  the  evidence  on  these  points 
entirely  to  the  decision  of  the  jury.  In  this  there  was  no  error. 

In  considering  the  seventh  bill  of  exceptions  I  have  already  said 
that  the  answers  of  the  court  to  the  fourth  point  was  correct,  and  it 
was  therefore  only  necessary  to  declare  that  there  is  no  cause  for 
reversing  the  judgment  on  this  ground. 

The  answer  of  the  court  to  the  ffth  point  was  correct.  It  is 
true  where  money  is  paid  to  one,  without  fraud  or  unfair  practices, 
the  party  who  receives  it  may  in  good  faith  and  conscience  retain 
it,  although  he  could  not  have  recovered  it  by  law.  The  law  is  so 
laid  down  in  innumerable  cases ;  but  here  there  was  no  such  pay- 
ment to  the  bank  as  has  been  stated,  in  considering  the  seventh  bill 
of  exceptions.  The  bank  could  not  enforce  against  Mr.  Jacobs  the 
payment  of  this  check,  and  as  it  was  not  actually  paid  to  the  bank, 
nor  according  to  the  opinion  of  the  jury,  who  had  to  decide  the  fact, 
allowed  in  any  settlement,  to  the  bank,  I  think  the  bank  cannot  in 
equity  and  good  conscience  retain  the  money,  and  that  this  case 
does  not  come  within  the  decisions  cited  by  the  counsel  for  the 
plaintiffs  in  error. 

The  sixth,  seventh  and  eighth  answers  have  been  considered  and 
declared  not  to  be  erroneous.  They  need  not  again  be  considered. 
This  then  disposes  of  all  objections  made  to  the  charge  of  the  court. 
One  more  error  remains  to  be  adverted  to.  It  is  contended  that 
there  is  a  misjoinder  of  counts  in  the  declaration  filed  in  the  cause, 
and  that  the  general  verdict  rendered  thereon  is,  therefore,  erro- 
neous. 

The  first  count  lays  the  indebtedness  to  the  testator,  Samuel 
Jacobs,  and  a  promise  to  him,  in  his  lifetime,  to  pay  him  the  sum 
of  money.  The  second  count  lays  the  indebtedness  to  the  adminis- 
trators, and  the  promise  to  the  administrators  to  pay  them,  &c. 
There  is  a  general  judgment  on  both  counts.  I  should  not  be  dis- 
posed to  reverse  the  judgment  on  this  ground,  after  a  full  and  fair 
trial  on  the  merits,  unless  it  were  clearly  required  by  some  prin- 
ciple of  undoubted  applicability  ;  but  there  is  no  such  principle  ;  on 
the  contrary,  this  court,  in  the  case  of  Stevens  v.  Gregg's  Admin- 
istratrix, 10  S.  &  R.  234,  has  in  fact  decided  that  counts  like  these 
may  be  joined,  and  has  given  the  true  guide  in  the  following  plain 
and  intelligible  direction,  that  "  wherever  the  funds  to  which  the 
money  and  the  costs  are  to  be  applied,  or  out  of  which  the  costs  are 
to  be  paid  are  the  same,  and  the  money  when  recovered  would  be 
assets,  then  the  counts  may  be  joined."  See  16  S.  &  R.  242,  to 
the  same  point. 

In  this  case  the  money,  if  recovered  on  either  count,  is  assets, 


Dee.  1829.]  OF  PENNSYLVANIA.  187 

[Bank  of  Pennsylvania  v.  Jacobs.] 

the  plaintiffs  look  for  nothing  in  their  own  individual  right,  but 
declare  in  their  representative  character,  and  the  counts  may,  there- 
fore, be  legally  joined.  The  judgment  must,  in  the  opinion  of  a 
majority  of  the  court,  be  affirmed. 

Judgment  affirmed. 

Referred  to,  6  Wh.  291,  292. 

Commented  on,  7  Wr.  15,  16. 

Affirmed,  3  W.  &  S.  70,71. 

1  P.  R.  185  is  cited  9  W.  &  S.  53,  the  case  probably  referred  to,  is  reported 
infra,  p.  383. 

1  P.  R.  170  is  cited  9  C.  99,  the  case  probably  referred  to  is  reported  infra, 
p.  402. 


188  SUPREME  COURT  \Lanca*t*r 


King  et  ux.  against  Morrison. 

J.  M.  obtained  patents  for  his  real  estate,  and  executed  to  the  Common- 
wealth mortgages  for  the  purchase-money,  and  died.  Administration  upon 
his  estate  issued  to  his  son.  The  real  estate  was  divided,  appraised  and 
taken  l»y  the  son,  and  the  other  children,  in  purparts  of  unequal  quantity 
and  value.  It  was  valued  at  its  full  value  without  any  deduction  on  account 
of  the  purchase-money.  The  administrator  paid  the  purchase-money  out  of 
the  personal  estate  :  Held,  that  the  payment  was  a  good  one,  and  the  adminis- 
trator entitled  to  a  credit  for  it. 

Where  personal  estate  is  appraised,  and  a  part  taken  by  the  heirs  at  the 
appraisement,  and  a  part  sold  at  an  advance  upon  the  sum  at  which  it  was 
appraised,  the  administrator  will  not  be  charged  with  a  proportional  advance 
on  the  poods  retained,  without  any  evidence  that  the  goods  retained  were  of 
greater  value  than  their  appraised  price. 

Quasre.  Under  what  circumstances  should  an  administrator  be  charged 
with  an  advance  on  goods  so  token  ? 

J.  M.  died  in  1810,  having  in  his  possession  a  bond  on  his  brother,  D.,  given 
in  1"'J4,  which  came  to  the  hands  of  the  administrator,  who,  with  I).,  in 
181 1,  although  the  cause  of  action  exceeded  $100,  entered  before  a  justice 
of  the  peace  an  amicable  action,  and  referred  all  matters  in  variance  to 
referees,  who  reported  in  favor  of  L).  ;  from  this  the  administrator  appealed. 
In  1814,  the  Supreme  Court  decided,  that  a  justice  had  not  jurisdiction  by 
amicable  action  and  reference,  where  the  cause  of  action  exceeded  £100.  This 
decision  was  published  in  ISIS;  the  appeal  was  then  quashed:  D.  obtained 
judgment  by  scire  facias,  reviving  the  original  judgment  in  his  favor  before 
the  justice.  To  this  the  administrator  issued  a  certiorari,  reversed  the  judg- 
ment for  want  of  jurisdiction  in  the  justice,  and  to  the  next  term,  in  1820, 
brought  suit  on  the  bond,  and  recovered  judgment. 

I).,  who  in  1S1U,  was  solvent,  when  judgment  was  rendered  against  him, 
had  become  insolvent,  and  the  debt  was  lost.  By  referring  to  the  record  of 
the  proceeding  in  court,  it  appeared  the  administrator  had  eminent  counsel. 

Held,  that  although  the  proceeding  before  the  justice  had  been  a  mistake 
the  administrator  watt  not  liable  for  the  debt  which  had  been  lost. 

There  is  no  case  where  trustees  have  acted  with  good  faith,  and  under  the 
advice  of  counsel,  in  which  they  have  been  held  responsible. 

J.  M.  left  a  slave  of  advanced  age,  who  by  the  advice  of  appraisers,  and  the 
farnilv,  was  not  appraised,  and  lived  with  the  family  till  they  separated,  and 
with  the  widow  until  her  death,  and  since  that  lived  with  the  administrator. 
At  the  time  of  the  account  taken,  lMi7,  she  was  of  no  value,  and  the  adminis- 
trator agreed  to  keep  her  during  her  life.  Held,  That  under  the  circum- 
stances of  the  cast,  the  administrator  was  not  chargeable  with  the  value  of 
her  services. 

THIS  was  an  appeal  from  the  decree  of  the  Orphans'  Court  of 
Lancaster  county,  passing  and  confirming  the  administration  ac- 
count of  Samuel,  administrator  of  James  Morrison,  deceased. 

James  Morrison  died  in  December  1810,  seised  of  a  large  real, 


Dec.  1829.]  OF  PENNSYLVANIA.  189 

[King  o.  Morrison.] 

and  possessed  of  considerable  personal  estate.  In  his  lifetime  he 
had  procured  patents  for  his  lands,  and  executed  to  the  state  two 
mortgages  for  the  purchase-money,  £c.  Administration  on  his  estate 
was  committed  to  his  widow,  Eleanor,  and  his  eldest  son,  Samuel, 
the  appellant  (who  survived  his  mother),  in  March  1811.  An 
inventory  of  the  personal  estate  was  filed,  a  part  of  it  was  taken  by 
some  of  the  heirs,  arid  a  part  sold  by  the  administrator,  who  filed  a 
vendue  paper,  from  which  it  appeared  there  was  a  considerable  ad- 
vance on  the  property  sold. 

In  1811  a  proceeding  was  had  in  the  Orphans'  Court  upon  the 
real  estate,  in  which  it  was  divided  into  six  parts,  and  appraised  at 
its  full  value,  making  no  deduction  for  the  money  due  for  patenting 
the  land.  The  purparts  into  which  it  was  divided  were  unequal  in 
quantity  and  value.  Samuel,  the  eldest  son,  and  the  administrator, 
took  the  largest  and  most  valuable  purpart ;  three  others  were  at 
the  same  time  taken  by  three  other  of  the  children  of  the  intestate. 
Of  the  two  parts  which  remained,  one  was  taken,  in  1812,  by 
another  child,  and  the  other  by  the  appellant,  in  right  of  his  wife, 
in  1817.  Several  of  the  children  were  minors  at  the  death 
of  the  intestate,  and  among  them  the  appellant's  wife,  who  was 
married  to  appellant  in  1817.  The  family  lived  together  at 
first,  but  removed  as  they  severally  got  married.  The  widow  died 
in  1827. 

James  Morrison,  at  the  time  of  his  death,  held  a  bond  on  his 
brother  Daniel,  given  in  1794,  which  came  into  the  possession  of 
the  administrators,  and  which,  at  the  time  the  inventory  was 
taken,  was  admitted  to  be  just  by  Daniel.  In  1811,  an  amicable 
action  was  entered  before  David  Montgomery,  Esq.,  a  justice  of 
the  peace,  by  the  administrators  of  Daniel  Morrison,  and  all  mat- 
ters in  variance  referred  to  referees.  The  referees  reported 
82G/.  18s.  Id.  in  favor  of  Daniel  Morrison,  and  the  justice, 
on  the  llth  day  of  January  1812,  entered  judgment  on  their 
report;  from  which,  on  the  13th  of  January,  the  plaintiffs,  the 
administrators,  appealed  to  the  Court  of  Common  IMeas. 

In  1814,  the  Supreme  Court  of  the  state,  in  the  case  of  Brenne- 
man  r.  Greenawalt,  decided  that  the  fourteenth  section  of  the 
Hundred  Dollar  Law  does  not  authorize  a  reference  to  men,  in  a 
suit  before  a  justice  of  the  peace,  where  the  sum  in  controversy 
exceeds  $100.  This  case  was  published  in  1M8,  in  1  S.  \  K.  27. 
On  the  10th  June  1818,  the  appeal  in  the  case  of  Morrison's  ad- 
ministrators against  Daniel  Morrison,  was  quashed. 

Daniel  Morrison  obtained  a  scire  facias  to  be  issued  by  the 
justice,  upon  the  judgment  in  his  favor,  on  which,  in  June  1819, 
judgment  was  entered.  To  this  judgment,  the  administrators 
issued  a  certiorari.  The  judgment  was  reversed,  on  the  ground  of 
a  want  of  jurisdiction  in  the  justice;  and  the  administrators,  to 


190  SUPREME  COURT  [Lancaster 

[King  r.  Morrison.] 

September  term  1820,  brought  suit  on  his  bond  against  Daniel 
Morrison,  and  recovered  a  verdict  and  judgment  against  him  for 
$2953.85. 

Daniel  Morrison  was  in  good  circumstances,  but  having,  on  the 
3d  of  June  1812,  sold  his  land  in  Lancaster  county  for  $8000,  he 
afterwards  became  insolvent ;  so  that  when  execution  issued  against 
him  on  this  judgment,  but  $173  were  made. 

It  was  in  proof,  by  the  record,  that  the  administrators  in  this 
controversy  with  Daniel  Morrison  had  able  counsel. 

Several  administration  accounts  had  been  filed — the  first  in 
1816,  the  second  in  1820  (in  each  of  these  the  widow  was  one 
of  the  accountants),  and  a  third  in  1827,  by  Samuel  Morrison,  as 
surviving  administrator. 

References  to  auditors  had  taken  place  in  the  controversies  with 
the  administrator,  Samuel,  who  was  the  acting  representative  of  the 
estate ;  and  reports  had  been  made  in  different  stages  of  the  busi- 
ness, one  of  which  had  never  in  any  way  been  returned  or  made  a 
part  of  any  proceeding  in  court. 

As  neither  of  the  first  two  accounts  purported  to  be  a  final 
settlement  of  the  whole  estate,  nothing  was  considered  as  con- 
cluded ;  and  in  May  1829,  the  whole  matter  was  referred  to 
auditors,  to  re-examine  each  of  the  accounts,  and  report  on  each. 

The  auditors  made  a  report,  which  being  confirmed,  was  brought 
by  appeal  into  this  court,  and  the  following  exceptions  here  taken 
and  relied  on : 

1st.  That  the  administrator  should  not  have  been  credited  with 
the  sum  of  $1397. 65,  paid  by  him  to  the  state,  for  patenting  the 
land. 

2d.  That  he  should  have  been  charged  with  an  advance  on  the 
goods  taken  by  the  heirs  at  the  appraisement.  . 

3d.  That  he  should  have  been  charged  with  $2953.21  (and  inte- 
rest thereon),  the  amount  of  the  judgment  recovered  against  Daniel 
Morrison. 

4th.  That  he  should  have  been  charged  with  the  value  of  a  negro 
woman  (the  property  of  the  intestate),  who  had  not  been  included 
in  the  inventory. 

Montgomery  and  Porter,  for  the  appellant. — 1st.  The  adminis- 
trator should  not  have  been  credited  with  the  amount  paid  by  him 
for  patenting  the  land.  The  trust  conferred  by  administration  is 
confined  to  the  personal  estate ;  the  form  of  the  bond  given  by  the 
administrator,  for  the  faithful  discharge  of  his  duty,  refers  to  that 
^lone. 

An  administrator  is  not  entitled  to  credit  in  his  administration 
account,  for  any  money  expended  on  account  of  the  real  estate,  or 
the  maintenance  of  the  children  :  McKinney  v.  Barber's  Adm'r,  8 
S.  &  R.  347. 


Dec.  1829.]  OF  PENNSYLVANIA.  101 

[King  v.  Morrison.] 

Under  the  intestate  laws,  debts  due  to  the  Commonwealth,  are 
to  be  last  paid ;  but  here  the  administrator  reversed  the  order  and 
paid  this  debt ;  and  suffered  other  debts  to  remain  and  interest  to 
accumulate  on  them. 

The  purchase-money  due  to  the  Commonwealth  is  a  charge  on 
the  land,  and  not  personal ;  and  is  expressly  decided  not  to  be  pay- 
able by  executors  out  of  the  personal  assets  :  Helfenstine,  Adm'r  of 
Waggoner  v.  Waggoner,  13  8.  &  it.  307. 

Nor  is  it  just  that  the  personal  estate  should  be  so  applied,  for 
here  the  children  of  the  intestate  took  unequal  shares  of  the  real 
estate,  and  the  discharge  of  this  debt  out  of  the  personal  estate, 
will  therefore  operate  unequally ;  giving  the  greatest  advantage  to 
Samuel,  the  appellee,  who  has  the  largest  purpart  of  the  land.  It 
cannot,  too,  be  endured  that  the  personal  estate  should  be  swept  from 
the  widow,  who  is  a  favorite  of  the  law,  to  exonerate  the  real 
estate. 

2d.  They  contended  that  the  administrator  should  be  charged 
with  an  advance  on  the  goods  retained  by  the  children,  which 
should  have  been  ascertained  by  calculation  ;  and  should  be  in  pro- 
portion to  the  advance  of  sales  on  the  goods  actually  sold. 

If  an  executor  omit  to  sell  goods,  he  is  answerable  for  their  full 
value  :  Toller  on  Ex.  427. 

Any  other  doctrine  would  open  a  door  to  fraud  ;  permitting  the 
administrator,  after  the  appointment,  to  select  such  articles  of  per- 
sonal property  as  he  might  find  to  be  worth  more  than  the  amount 
of  their  valuation. 

3d.  The  negligence  of  the  administrator,  is  the  ground  on  which 
he  ought  to  be  charged  with  the  bond  due  by  Daniel  Morrison. 
The  negligence  of  which  he  has  been  guilty  is  supine  negligence, 
of  the  grossest  kind.  He  is  bound  by  his  duty,  as  administrator,  to 
collect  the  debts  due  the  estate,  and  settle  his  account  within  one 
year  from  the  time  administration  is  granted  to  him. 

Here,  years  are  suffered  to  elapse  before  he  brought  suit,  and  the 
consequence  is  the  loss  of  the  debt.  At  all  events  he  should  have 
secured  the  debt  by  obtaining  judgment  upon  it. 

He  derives  no  protection  from  the  proceedings  before  the  justice 
of  the  peace.  That  proceeding  was  coram  non  jmlicc,  and  a  mere 
nullity.  But  besides,  it  was  a  voluntary  submission  to  reference, 
from  which,  if  a  loss  ensued,  he  is  bound  to  bear  that  loss  :  Toller 
on  Ex.  424.  He  ought  to  have  sought  the  ordinary  forum,  which 
alone  could  ensure  his  safety  from  responsibility.  Here  too,  after 
the  decision  in  the  case  of  Brenneman  and  Greenawalt,  he  might 
have  discontinued  his  appeal,  brought  suit,  and  secured  the  debt. 

If  an  administrator  delay  to  bring  suit  on  a  bond,  he  is  liable: 
Gordon's  Law  of  Decedents  264. 

4th.   They  contended  that  the  administrator  should  be  charged 


192  SUPREME  COURT  [Lancaster 

[King  v.  Morrison.] 

with  the  services  of  the  negro  woman,  who  had  resided  with  the 
family  ;  that  the  appellant  was  married  in  1810,  and  had  not  par- 
ticipated equally  in  the  benefit  of  those  services. 

W.  Hopkins,  for  the  appellee,  referred  to  the  cases  of  Buckley 
v.  Ellmaker,  13  S.  &  R.  70 ;  Harker  v.  Elliott,  7  Id.  284,  arid 
argued — 

1st.  The  debt  due  the  Commonwealth  for  patenting  the  land  was 
a  debt  by  mortgage,  created  by  the  intestate,  which  he  was  bound 
to  pay.  It  is  a  debt  by  specialty,  and  must  be  paid  out  of  the  per- 
sonal estate,  although  there  be  no  bond  or  covenant  to  pay  it:  Gor- 
don on  Decedents  175;  King  r.  King,  3  P.  Wms,  358. 

In  the  order  of  paying  the  debts  of  decedents,  bonds  and  special- 
ties are  in  the  fifth  class:  Purd.  370,  14th  sect.  Act  of  19th  April 
1794. 

But  this  order  applies  only  to  cases  of  deficiency  of  assets, 
which  does  not  exist  here,  and  if  it  did,  the  mortgage  would  place 
it  in  the  class  of  specialties  and  to  be  paid  out  of  the  personal 
estate.  In  the  case  of  Ilelfenstine's  Adrn'r  v.  Waggoner,  there  was 
no  mortgage,  and  this  constitutes  the  distinction  between  that  case 
and  this. 

Interest  was  chargeable  on  the  debt  due  to  the  Commonwealth, 
and  therefore  there  was  no  difference,  in  this  respect,  between  the 
payment  of  this  debt  and  any  other. 

2d.  It  docs  not  follow  because  there  was  an  advance  on  the 
goods  sold,  that  there  would  have  been  an  advance  on  the  goods 
retained  by  the  family.  These  goods  are  usually  such  as  do  not 
sell  well ;  consisting,  for  the  most  part,  of  second-hand  household 
furniture. 

3d.  Daniel  Morrison's  bond  was  not  put  into  the  inventory  of  the 
estate.  At  the  time  the  inventory  was  taken,  the  heirs  acquiesced 
in  not  putting  it  into  the  inventory,  as  is  proved  by  a  witness  ex- 
amined:  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  80;  Orr  r.  Haines,  2 
Vesey  194. 

A  trustee  is  not  chargeable  with  imaginary  values,  or  more  than 
helms  received,  unless  guilty  of  gross  negligence,  amounting  to  wil- 
ful default.  A  trustee  is  not  responsible  for  an  error  of  judgment : 
Osgood  v.  Franklin,  2  Johns.  Ch.  27.  So  where  a  trustee  goes  by 
the  advice  of  counsel,  and  acts  with  good  faith,  and  where  the  con- 
fidence reposed  by  him  was  the  same  as  that  which  had  been  ex- 
tended by  the  intestate,  he  is  not  liable. 

It  may  have  been  an  error  of  sharp-sighted  judgment,  but  for 
this  a  trustee  is  not  answerable  :  Thompson  v.  Brown,  4  Johns. 
Ch.  619,  20,  27. 

The  bond  was  given  by  Daniel  to  his  brother  in  1794,  and  was 
not  sued  by  him  up  to  the  time  of  his  death,  in  1810  ;  so  that  the 


Dee.  1829.]  OF  PENNSYLVANIA.  193 

[King  v.  Morrison.] 

administrator  did  but  continue  the  ancestral  confidence,  which  had 
been  reposed  by  his  father  in  his  uncle. 

But  the  administrator  did  seek  a  judgment.  Daniel  claimed  a 
large  set-off,  and  by  mutual  consent  the  amicable  action  was  entered 
before  the  justice;  and  the  matters  in  controversy  submitted  to 
reference.  Under  the  Act  of  1810,  giving  jurisdiction  to  justices 
of  the  peace,  it  was  generally  supposed,  at  the  bar,  that  a  justice 
might,  under  the  fourteenth  section,  entertain  jurisdiction  of  a  cause 
of  action,  exceeding  §100  in  this  way.  This  impression  was  not 
'ascertained  to  be  erroneous  until  the  case  of  Brenneman  v.  Green- 
await  was  decided  ;  and  although  this  case  was  decided  in  1814,  it 
was  not  published  until  1818,  and  did  not,  until  then,  become  gen- 
erally known  to.  the  bar. 

During  all  this  time  the  proceeding  instituted  before  Justice 
Montgomery  was  pending,  and  could  not,  owing  to  the  great  amount 
of  business  in  the  Court  of  Common  Pleas  of  Lancaster  county,  be 
disposed  of;  and,  during  all  this  time,  the  administrator  proceeded 
by  the  advice  of  counsel. 

When  the  case  of  Brenneman  v.  Greenawalt  became  known,  the 
appeal  was  quashed  ;  but  the  judgment  before  the  justice  in  favor 
of  Daniel  Morrison  remained  unreversed ;  nor  could  this  be  effect- 
ed until  he  chose  to  proceed  on  it ;  for  no  certiorari  could  be  issued 
after  twenty  days  from  the  rendition  of  that  judgment. 

But  so  soon  as  Daniel  obtained  a  judgment  on  the  scire  facias, 
which  he  caused  to  be  issued,  the  administrator  issued  a  certiorari, 
reversed  that  judgment,  and  having  thus  removed  every  difficulty 
growing  out  of  that  proceeding,  he  brought  suit  on  the  bond,  and 
obtained  a  judgment.  If  then  there  were  error  on  the  part  of  the 
administrator,  it  was  an  error  of  judgment,  there  was  no  lata  culpa 
and  it  is  clear  that  for  an  error  of  judgment  he  is  not  liable. 

4th.  The  negro  woman  lived  in  the  family.  By  the  consent  of 
the  parties,  she  was  not  included  in  the  inventory,  and  each  of  the 
children  had  a  proportion  of  benefit  from  her  services. 

Reply.  The  mortgage  given  for  the  purchase-money  of  the  land 
to  the  Commonwealth,  does  not  differ  the  case.  It  did  not  change 
the  nature  of  the  debt,  it  but  merely  added  a  more  formal  security, 
and  ascertained  the  amount  of  it. 

It  does  not  follow  because  the  debt  due  by  Daniel  Morrison  was 
not  put  into  the  inventory,  that  therefore  the  administrator  is  not 
chargeable  with  it.  It  is  not  the  general  practice  to  put  debts  into 
the  inventory.  There  is  no  proof  that  counsel  were  ever  consulted, 
as  to  instituting  the  proceeding  before  the  justice.  If  such  had 
been  the  fact,  it  should  have  been  proven  by  the  testimony  of  the 
counsel  who  were  employed. 

Had  lie  brought  a  suit  in  court,  he  would  have  secured  a  lien, 
which  could  not  be  affected  by  the  proceeding  before  the  justice. 
1  p.  &  W.— 13 


194  SUPREME  COURT  [Lancaster 

[King  r.  Morrison.] 

The  case  in  2  Johns.  Ch.  is  of  a  desperate  debt,  and  that  in  4 
Johns.  Ch.  is  of  a  partner,  in  whom  confidence  was  placed  as  such: 

The  estate  will  be  liable  for  the  support  of  the  black  woman,  and 
the  administrator  should  be  charged  as  respects  us ;  for  the  appel- 
lant derived  no  advantage  from  her  services. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J.  (who  recapitulated  tho  facts  of  the  case). — 1.  The  first 
exception  is  that  the  accountants  claimed,  and  were  allowed,  a  credit 
of  $1397.65,  for  patenting  the  land  of  the  deceased.  An  Act  of 
Assembly,  passed  in  1785,  had  allowed  those  persons  whose  lands 
were  unpatented,  to  obtain  a  patent,  on  giving  to  the  state  a  mort- 
gage for  the  purchase-money  remaining  due.  James  Morrison  in 
his  lifetime  had,  under  this  law,  taken  patents  for  his  land,  and 
given  two  mortgages  to  the  Commonwealth  for  the  purchase-money 
in  arrear.  It  appeared  fully  in  evidence  that  respectable  counsel 
had  advised  the  administrators,  that  they  must  satisfy  these  mort- 
gages ;  and  further,  that  the  inquest,  which  divided  the  lands,  were 
apprised  of  this,  and  estimated  them  at  so  much  per  acre,  clear  of 
these  mortgages — all  inquests  in  such  cases  do  so.  It  cannot  be 
pretended  that  there  was  any  injustice  in  paying  the  mortgage- 
money  to  the  state — for  it  being  added  to  the  price  of  each  parcel, 
and  the  amount  of  the  several  purparts  added  together,  making  the 
sum  total,  to  be  equally  divided  among  the  heirs,  it  is  most  appar- 
ent each  child  bore  an  equal  part  of  this. 

But  8  S.  &  R.  347  is  cited,  in  which  the  court  say  the  adminis- 
trator had  no  right  to  credit  for  money  expended  on  account  of 
real  estate.  In  that  case,  the  widow,  who  had  married  again  had 
kept  possession  of  the  farm,  and  yet  charged  the  children  $2000, 
for  improvements,  during  about  eleven  years,  being  much  more  than 
the  rents.  This  was  disallowed.  There  is  no  question  the  case 
was  decided  rightly — but  the  expression  could  not  have  been  used 
as  universally  true ;  for  the  nineteenth  section  of  the  general  act 
concerning  intestate's  estates,  expressly  authorizes  the  administra- 
tors, to  borrow  on  mortgage  (giving  the  premises  for  security),  any 
sum  of  money,  not  exceeding  one-third  of  the  value  thereof,  or  to 
sell  and  convey  such  part  or  parts  of  the  said  lands,  as  the  Orphans' 
Court  of  the  county  where  the  lands  lie,  shall  in  either  case,  from 
time  to  time,  think  fit  to  allow,  for  defraying  just  debts,  mainten- 
ance of  the  children,  putting  them  apprentices,  teaching  them  to 
read  and  write,  or  for  the  improvement  of  the  residue  of  the  estate, 
if  any  be,  for  their  advantage. 

Now  this  is  to  be  done,  and  in  case  there  is  no  personal  estate, 
if  there  is  personal  estate,  it  would  seem  the  same  may  be  done 
with  it;  and  whatever  the  law  directs  administrators  to  do,  may  be, 
and  must  be  put  into  an  administration  account.  But  the  account 


Dec.  1829.]  OF  PENNSYLVANIA.  195 

[King  v.  Morrison.] 

ought  to  show  the  debts  to  be  paid,  before  any  allowance  to  improve 
the  land,  or  at  least  that  there  will  be  enough  with  which  to  pay 
them.  In  this  case  this  was  a  debt,  and  peculiarly  proper  to  bo 
paid,  for  as  each  mortgage  covered  about  four  hundred  acres,  and 
that  was  divided  and  taken  in  unequal  quantities,  and  at  different 
prices,  it  would  have  been  difficult  to  apportion  the  sum  each  was 
to  pay  on  the  mortgage.  The  mortgage  is  a  debt  of  the  intestate, 
and  to  be  paid  with  the  personal  estate,  in  case  of  intestacy, 
if  administrators  can  pay  it.  3  P.  Wins.  358.  In  this  case,  under 
the  circumstances,  there  was  no  error  in  allowing  this  credit. 

2d  exception.  The  auditors  erred  in  not  charging  an  advance 
on  the  personal  estate,  taken  by  the  heirs  at  the  appraisement. 
On  that  part  of  the  goods  sold,  there  was  an  advance.  And  if  it 
had  been  proved  that  the  articles  taken  at  the  appraisement,  had 
been  sold  by  those  who  took  them  at  an  advance,  this  advance 
ought  to  be  charged  to  each  heir  who  took  them  at  such  appraise- 
ment; but  there  is  no  such  proof,  nor  any.  proof  that  either  of  the 
administrators  took  any  article  at  the  appraisement.  The  family 
lived  together  until  they  successively  married.  In  such  case,  cer- 
tain articles  are  necessary  to  be  bought,  or  taken  at  the  appraise- 
ment. There  is  no  pooof  how  they  were  divided  at  the  death  of 
the  widow,  or  as  each  child  separated.  There  was  no  exception  at 
the  time  the  first  or  second  account  was  settled,  as  to  this  matter, 
and  we  see  no  evidence,  which,  at  this  timo,  would  justify  us  in 
supporting  this  exception,  more  especially,  as  it  appears  to  us  that 
this  item  is,  by  a  mistake,  really  charged  twice  in  the  account,  and 
credited  but  once. 

3d  exception.  The  auditors  have  erred,  in  not  charging  the 
administrators  with  $2953.21,  being  the  amount  of  a  bond  and 
interest  which  the  intestate  held  on  Daniel  Morrison,  and  which 
was  lost  by  negligence  of  the  administrators.  This  is  an  item  of 
serious  amount,  and  was  really  lost  to  the  estate ;  and  a  witness 
proved  that  it  might  have  been  collected  at  the  death  of  intestate, 
or  rather  that  Daniel  was  able  at  that  time  to  pay  it,  and  promised 
to  pay  it  when  lie  sold  his  land.  By  the  bye,  this  witness  was  at 
one  time  an  arbitrator  on- one  of  these  accounts,  and  then  allowed  a 
credit  for  it. 

By  the  fourteenth  section  of  the  Act  of  20th  March  1810,  it  is 
provided  that  any  justice  may  take  cognisance  of  anything  made  so 
by  this  act,  for  any  sum  exceeding  $100,  if  the  parties  voluntarily 
appear  before  him  for  the  purpose ;  and  shall  proceed  for  the 
recovery  thereof,  by  entering  judgment  if  confessed,  or  if  submitted 
to  him  by  reference.  This  was  understood  to  mean  if  the  parties 
instituted  a  suit  voluntarily,  and  referred  it  to  arbitrators  chosen 
by  themselves,  and  the  justice  entered  judgment  on  the  award.  It 
was  known  before,  that  parties  might  refer  at  common  law  to  arbi- 


196  SUPREME  COURT  [Lancaster 

[King  r.  Morrison.] 

trators,  and  were  bound  by  the  award ;  but  they  often  had  to  sue 
on  the  award,  and  it  was  supposed  that  the  judgment  on  the  award, 
by  the  justice,  came  in  place  of  an  action  on  debt  on  the  award. 
In  many  parts  of  the  state,  much  was  settled  in  this  way.  Under 
this  impression,  the  administrators  and  Daniel  Morrison,  submitted 
their  claim  on  this  bond,  to  three  arbitrators,  before  a  justice. 
This  was  in  the  summer  of  1811.  Daniel  set  up  a  defence  as  to 
the  whole,  and  more;  and  an  award  was  made  in  his  favor  for  $o-7, 
and  judgment  entered  for  him.  The  administrator  appealed  to 
court.  Two  eminent  counsel  were  employed  by  them.  The  busi- 
ness in  court  in  this  county  was  greatly  in  arrear,  and  a  special 
court  appointed,  in  addition  to  the  regular  court,  have  not  yet 
brought  up  the  business.  In  1814,  the  Supreme  Court  decided, 
that  such  proceedings,  before  a  justice,  were  illegal  and  void.  This 
decision  was  not  pub'ished,  or  generally  known  until  1818:  Bren- 
neman  v.  Greenawalt,  1  S.  &  R.  27.  Soon  after  this,  the  appeal 
•was  struck  off  the  docket,  and  Daniel  Morrison  issued  execution. 
The  administrators  took  out  a  certiorari,  and  reversed  the  proceed- 
ings, and  before  the  next  term  brought  suit  in  court,  and  recovered, 
but  Daniel  Morrison  had  become  insolvent,  and  the  debt  was  lost. 
There  was  no  delay  in  any  part  of  the  proceedings,  but  the  pro- 
ceedings were  unfortunately  mistaken.  It  is  believed  there  is  no 
instance  where  trustees  have  acted  with  good  faith,  and  under  the 
advice  of  counsel  (and  here  they  had  eminent),  in  which  they  have 
been  held  responsible:  4  Johns.  Ch.  Gil*.  It  is  an  unfortunate 
business ;  but  one  in  which  there  was  neither  negligence  nor  fault. 
The  mistake  in  the  proceeding  was  riot  peculiar  to  them,  or  to  this 
district.  In  the  district  in  which  I  lived,  such  proceedings  were 
common,  and  no  lawyer  questioned  their  legality,  before  the  case 
above  cited. 

4th.  This  exception  embraces  several  small  items,  which  the 
referees  on  the  second  account  had  charged  to  the  administrators. 
No  evidence  was  before  us  to  show  why  these  charges  were  made, 
and  as  that  report  was  waived  by  the  present  submission  to  audi- 
tors, we  do  not  see  how  we  can  decree  the  administrators  to  pay 
those  sums.  That  report  had  not  been  confirmed  by  the  court. 
The  bare  fact  that  one  set  of  auditors  made  those  charges  is  met  by 
the  fact  that  the  present  auditors  rejected  them,  and  without  some 
evidence  of  their  justice,  we  cannot  say  the  administrator  must  pay 
them. 

There  is  another  item  under  this  fourth  error  :  James  Morrison 
left,  among  other  property,  a  negro  woman,  a  .slave.  The  proof  is 
she  was  of  an  advanced  age,  was  (by  the  advice  of  the  appraisers 
and  the  family),  not  appraised  ;  she  lived  with  the  family  as  long  as 
they  lived  together,  and  with  the  widow  till  the  widow's  death,  and 
that  has  gone  to  Samuel.  No  exception  on  account  of  this 


Deo.  1829.]  OF  PENNSYLVANIA.  197 

[King  v.  Morrison.] 

woman  was  made  to  cither  of  the  first  two  accounts.  The  objec- 
tion is  now  made  by  the  husband  of  the  youngest  daughter,  who 
was  a  minor  at  the  time  of  the  appraisement.  She  however  married 
about  1816  or  17,  and  her  husband  made  no  objection  then,  nor 
when  the  second  account  was  filed.  Where  a  family  have  made 
arrangements  for  their  own  convenience,  or  that  of  their  mother, 
and  have  acted  on  that  arrangement  so  long  as  from  1811  till  1827, 
without  objection,  an  objection  then  taken  appears  harsh.  I  do 
not  say  such  objection  will  never  be  sustained  in  court,  but  it  must 
be  a  substantial  one  to  have  effect.  Minors  will  not  be  bound  by 
arrangements  by  the  elder  branches  of  the  family,  where  they  are. 
for  the  exclusive  advantage  of  the  latter,  and  unjust  to  the  minors, 
but  the  objection  ought  to  be  made  in  some  reasonable  time.  In 
the  country,  where  the  female  part  of  the  family  do  the  work  of 
the  house,  the  daughters  derive  as  much  benefit  from  the  labor  of  a 
female  slave  as  the  sons  ;  perhaps  a  little  more.  Samuel  had,  per- 
haps, the  least  of  the  whole  family  ;  and  as  no  complaint  was  made 
until  after  the  death  of  the  mother,  there  is  little  if  any  ground  for 
charging  him  with  what  was  of  more  benefit  to  the  wife  of  the  com- 
plainant than  to  Samuel.  She  is  now  of  such  an  age  as  to  be  of 
no  value,  and  he  agrees  to  keep  her  during  her  life.  Much  respect 
is  paid  to  family  arrangements,  if  just  and  reasonable,  and  especially 
if  long  acquiesced  in.  There  are  two  other  exceptions  not  insisted 
on,  and  we  confirm  the  report  of  the  auditors  so  far  as  it  is 
before  us.  Decree  affirmed. 

TOD,  J.,  dissented  as  to  the  advance  claimed  on  the  goods  taken 
at  the  appraisement.  This  he  thought  ought  to  be  calculated  and 
charged ;  and  also  as  to  the  payment  of  the  mortgage  to  the  state, 
which  he  thought  ought  not  to  be  credited  out  of  the  personal 

estate. 

King  r.  King.  1  P.  &  W.  191,  is  cited  10  W.  102,  the  case  referred  to  is 
King  o.  King,  suprat  15. 


198  SUPREME  COURT  [Lancaster 


Doner  et  al.  against  Stauffer  et  al. 

IN    ERROR. 

In  a  case  of  partnership  the  joint  effects  belong  to  the  firm  and  not  to  the 
partners,  each  of  whom  is  entitled  only  to  a  share  of  what  may  remain  after 
the  payment  of  the  partnership  debts,  and  no  greater  interest  can  he  derived 
from  a  voluntary  assignment  of  his  share  or  a  sale  of  it  on  execution. 

A  preference  exists  in  favor  of  the  joint  creditors  of  a  firm,  founded  on  no 
merits  of  their  own,  but  on  the  equity  which  springs  from  the  nature  of  the 
contract  between  the  partners  themselves. 

With  the  single  exception  of  a  joint  commission,  whenever  the  partners  are 
not  individually  involved,  the  joint  creditors  have  no  preference. 

A  separate  execution  creditor  sells  not  the  chattels  of  the  partnership,  but 
the  interest  of  the  partner,  encumbered  with  the  joint  debts  ;  and  the  joint 
creditors  have  therefore  no  claim  to  the  proceeds. 

Where  the  separate  creditors  of  each  partner  proceed  by  execution,  the  sale 
of  the  partnership  effects,  under  the  execution  of  the  separate  creditor  of 
one  partner,  passes  the  interest  of  that  partner  subject  to  the  equity  of  his 
copartner,  and  the  execution-creditor  is  entitled  to  the  price.  This  equity, 
together  with  the  remaining  interest  of  the  other  partner,  passes  by  a  sale 
under  execution  of  his  separate  creditor,  where  the  purchaser  of  the  effects 
is  the  same :  and  this  whether  the  sales  be  made  consecutively,  or  at  the 
same  time. 

Qucert.  What  would  be  the  effect  where  there  are  separate  purchasers 
of  the  shares  of  the  respective  partners. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Lancaster 
county.  % 

This  was  a  feigned  issue,  directed  by  that  court,  and  joined 
between  the  defendants  in  error,  who  were  the  plaintiffs  below,  and 
for  whom  the  verdict  passed),  and  the  plaintiffs  in  error,  who  were 
the  defendants  below. 

It  appeared  from  the  evidence  in  the  cause  that  Daniel  Howry 
and  Benjamin  B.  Eshelman  entered  into  partnership  in  a  manu- 
facturing establishment,  under  the  firm  of  Howry  and  Eshelman. 
They  became  considerably  indebted.  Judgments  were  entered  and 
executions  were  issued  against  each  of  them.  Abraham  Doner, 
Samuel  Ilerr,  John  Howry  and  Samuel  Howry  had  severally  judg- 
ments against  Daniel  Howry,  on  each  of  which  an  execution  issued 
against  him,  and  was  levied  on  the  JHli  of  August  18:2f>.  on  the  per- 
sonal property  of  Daniel  Howry  and  Benjamin  LJ.  Eshelman  as 
partners  in  trade. 

John  Stauffer,  Christian  Breckbill  and  Jacob  Eshelman  had  seve- 
rally obtained  judgments  against  B.  B.  Eshelman,  on  each  of  which 
judgments  an  execution  was  issued  against  him  and  levied  on  the 
llth  day  of  August  1825,  on  Benjamin  B.  Eshelman 'a  share  of  the 


Dec.  1829.]  OF  PENNSYLVANIA.  199 

[Doner  v.  Stauffer.] 

personal  property  of  Benjamin  B.  Eshelman  and  Daniel  Howry, 
as  partners  in  trade.  By  virtue  of  these  and  other  executions,  the 
personal  property  of  the  firm  was  sold  for  the  sum  of  §5070. .'39, 
which,  after  payment  of  the  costs,  left  a  balance  of  §4779.  This 
balance  was  paid  into  court  for  distribution. 

On  a  rule  obtained  by  the  counsel  of  Stauffer,  Breckbill  and  Esh- 
elnian,  to  show  cause  why  the  one-half  of  the  proceeds  of  the  sale 
of  the  firm  property  should  not  be  applied  to  the  satisfaction  of 
their  executions  against  B.  B.  Eshelman,  the  court  decided  that 
the  execution-creditors  of  Benjamin  B.  Eshelman  had  a  legal  right 
to  his  share  of,  and  interest  in  the  partnership  effects  of  the  firm  of 
Howry  &  Eshelman,  as  it  stood  on  the  llth  August  1825,  when  the 
executions  were  levied ;  and  directed  this  issue,  to  try  what  that 
share  or  interest  was. 

The  plaintiffs  claimed  a  moiety  or  half  part  of  the  §4779  as  their 
share. 

The  plaintiffs  having  closed  their  evidence,  the  defendants,  in 
support  of  the  issue  taken  in  the  cause,  offered  to  prove  that  the 
firm  of  Howry  &  Eshelman  was  entirely  insolvent  on  the  llth  Au- 
gust 1825  ;  that  the  debts  and  claims  against  the  said  firm  existing 
on  the  said  llth  August  1825,  which  were  then  unpaid,  greatly 
exceeded  the  whole  property  of  the  said  firm  ;  that  Benjamin  B. 
Eshelman,  on  the  said  day,  had  no  interest  whatever  in  the  said 
firm,  and  that  Daniel  Howry,  the  other  partner,  is  greatly  interested 
in  the  application  of  the  funds  of  the  said  firm  to  the  payment  of 
the  debts  of  the  said  firm,  as  he  is  answerable,  individually  and  as 
a  partner,  for  the  whole  of  the  said  debts.  Which  offer  being 
objected  to,  the  court  overruled  the  same,  and  delivered  the  follow- 
ing opinion,  to  wit:  "I  am  satisfied  that  the  authorities  cited  settle 
the  law  as  it  applies  to  the  cases  decided,  that  is  to  say,  to  cases 
where  there  are  separate  executions  against  one  partner  levied  on 
the  partnership  effects.  But  this  is  a  case  where  the  whole  partner- 
ship effects  are  swept  away  by  separate  executions  against  each 
partner,  where  the  creditors  at  large  have  no  lien.  I  must  say 
that  the  principal  object  in  directing  this  issue  was,  as  it  was  a 
case  of  great  importance,  to  give  an  opportunity  of  completely  con- 
sidering and  reviewing  the  law  on  the  subject.  But  1  am  very 
clear  that  Benjamin  B.  Eshelman's  interest,  or  want  of  interest, 
cannot  be  shown  by  evidence  of  debts  due  from  the  firm,  and  that 
the  testimony  offered  relative  to  the  insolvency  of  the  firm,  and  the 
interest  of  Daniel  Howry  in  the  application  of  the  funds  of  the  firm 
to  the  payment  of  its  debts,  cannot  be  admitted." 

To  this  opinion,  overruling  the  evidence  offered,  the  defendants 
excepted. 

Although  the  issue  joined  was  between  the  separate  execution- 
creditors  of  the  respective  partners,  the  counsel  for  the  defence 
appeared  for  the  joint-creditors  of  the  firm,  to  controvert  the  right 


200  SUPREME  COURT  [Lancaster 

[Doner  r.  Stauffer.] 

of  the  separate  creditors  of  Eshelman,  to  be  paid  out  of  the  fund  in 
court,  before  the  joint-creditors  were  satisfied ;  and  they  alleged 
that  after  the  executions  of  the  separate  creditors  were  levied, 
Howry  &  Eshelman  had  made  an  assignment  to  trustees,  for  the 
benefit  of  the  creditors  of  the  firm. 

The  only  question  now  raised  in  this  court,  upon  the  charge  of 
the  court  below,  and  the  bill  of  exception,  was,  whether  the  separate 
execution-creditors  of  Eshelman  had  a  right  to  be  paid  out  of  the 
proceeds  of  the  sales  of  the  goods  of  the  firm,  before  the  joint- 
creditors  were  satisfied  out  of  that  fund. 

Norris,  for  the  joint-creditors,  denied  that  the  separate  execution- 
creditors  had  a  right  to  the  fund  in  court  for  appropriation.  The 
separate  creditor  cannot  withdraw  the  funds  of  the  partnership  from 
the  payment  of  the  partnership  debts  to  pay  his  debt.  Accounts 
must  be  settled  between  the  partners  and  the  world,  and  one  between 
the  partners  themselves,  before  such  creditor  can  have  the  fruit 
of  his  execution  ;  he  comes  in  only  for  the  surplus  after  paying  the 
partnership  debts. 

Partners  have  a  lien  on  the  partnership  effects,  creditors  have 
not.  No  spark  of  interest  can  be  drawn  from  the  firm  by  one 
partner  until  the  partnership  is  settled.  The  partnership  fund  is 
pledged  for  the  payment  of  the  partnership  debts.  The  only  inte- 
rest which  each  partner  has,  is  what  remains  after  the  debts  are 
paid  ;  it  is  the  dry  mass  of  property,  after  the  payment  of  the  part- 
nership debts. 

This,  then,  being  the  interest  vested  in  Eshelman,  the  plaintiffs 
below,  the  separate  execution-creditors,  could  take  no  greater  inte- 
rest, and  therefore  the  joint-creditors  must  be  first  paid :  West  v. 
Skip,  1  Ves.  2-44,  293. 

The  vendee  is  a  tenant  in  common  with  the  surviving  partner: 
Fox  v.  Hanburg,  Cowper445;  Pearce  v.  Jackson,  4  Mass.  242; 
Taylor  v.  Fields,  4  Ves.  Jr.  390.  He  also  referred  to,  In  the  Mat- 
ter of  Smith,  10  Johns.  R.  102,  and  the  note  to  that  case,  where 
the  cases  on  the  subject  of  the  proceeding  under  an  execution  in 
favor  of  a  separate  creditor,  levied  on  partnership  effects,  arc  col- 
lected :  Nichol  et  al.  v.  Munfort,  4  Johns.  Ch.  522,  f>2o.  Edy  v. 
Davidson,  Douglass  OoO,  decides  that  the  sheriff  should  pay  a  part 
of  the  money  levied  on  the  execution  of  the  separate  creditor,  out 
of  the  partnership  effects,  to  the  assignee,  representing  the  partner- 
ship creditors,  equal  to  the  amount  of  the  interest  of  the  partnership 
in  those  effects.  This  case  is  precisely  in  point :  Gow  on  Part.  49, 
317.  The  right  is  a  lien  in  favor  of  partners :  Watson  on  Part. 
103 ;  Bank  of  North  America  v.  McCall,  3  Uinn.  338. 

An  action  may  be  brought  by  a  surviving  and  solvent  partner, 
to  recover  money  obtained  by  a  separate  creditor,  out  of  partner- 
ship effects:  Bank  of  North  America  v.  McCall,  4  Binn.  371; 


Dec.  1829.]  OF  PENNSYLVANIA.  201 

[Doner  v.  Stauffer.] 

Knox  v.  Summers,  4  Yeatcs  477.  The  general  doctrine  is  recog- 
nised in  this  case,  and  here  money  was  made  on  a  separate  execution 
against  one  partner,  and  brought  into  court,  and  claimed  by  the 
assignees  of  the  partners,  on  a  subsequent  execution,  and  the  court 
decreed  the  money  to  the  assignee.  He  referred  also  to  McCarty 
v.  Emlen,  2  Yeates  190.  Chancery  will  not  stay  the  execution  of 
the  separate  creditor,  until  the  partnership  debts  are  taken  and 
liquidated :  Moody  v .  Payne,  2  Johns.  Ch.  548  ;  Kuhn  v.  Nixon, 
15  S.  &  R.  118,  125;  Caldwell  v.  Stileman,  1  Kawle  212,  1C. 

The  fund,  is  by  law,  appropriated  to  joint-creditors,  and  the 
separate  creditors  must  show  that  they  are  satisfied,  before  such 
separate  creditors  can  come  at  it. 

This  preference  of  the  joint-creditors,  as  to  the  partnership 
effects,  is  the  well-settled  law  of  Pennsylvania.  The  lien  of  the 
partner,  upon  these  effects,  which  gives  this  preference,  arises  from 
the  contract  of  partnership.  They  are  mutually  bound,  on  that 
contract,  for  the  joint-debts  of  the  firm,  and  if  the  separate  creditor 
of  one  partner,  could  sweep  the  partnership  fund  away,  great  injus- 
tice would  result  to  the  other  partner.  His  Iiabi4ity  to  the  joint- 
creditors  would  remain,  while  the  joint-property,  in  which  he  had 
an  equal  interest,  would  be  taken  to  satisfy  the  debt  of  his  partner, 
in  which  he  had  no  interest,  and  for  which  he  was  in  no  way  liable. 
All  this  is  prevented  by  the  principle  of  natural  justice,  which 
gives  the  lien  to  the  partner,  and  secures  the  effects  to  the  joint- 
creditors.  This  docs  not  depend  on  the  bankrupt  law,  nor  is  it 
derived  from  the  system  which  in  England  has  been  adopted  under 
it.  That  law  is  silent  as  to  any  preference.  It  arises  from  natural 
equity,  growing  out  of  the  contract  of  partnership,  and  is  said  to 
exist  at  common  law. 

The  sale  in  our  case  was  in  invito,  against  the  consent  of  the 
owner  of  the  goods.  It  is  a  transfer  by  operation  of  law.  The 
sheriff  must,  under  the  separate  execution,  seize  the  partnership 
effects,  for  the  partners  are  seized  per  mi  ct  per  tout,  and  the 
interest  of  each  cannot  be  separated  :  Watson  98,  1'2. 

The  courts  of  law  in  Pennsylvania,  as  we  have  here  no  courts 
of  equity,  are  bound  to  enforce  the  equity  arising  in  the  relation 
of  partnership  between  the  partners :  Bell  v.  Newman,  5  S.  & 
R.  78. 

Where  the  land  of  an  intestate  is  sold  bv  execution,  the  money 
is  to  be  distributed  according  to  the  order  of  payment  of  debts,  in 
the  case  of  personalty,  and  the  court  from  which  execution  issued 
is  bound  to  distribute  it :  Penn.  Agric.  &  Mamifac.  Bank  r.  Stam- 
baugh's  Adm'rs,  13  S.  &  R.  299. 

In  the  case  of  Edy  v.  Davidson,  the  same  equitable  doctrine  was 
applied  to  the  distribution  of  money,  levied  out  of  partnership 
effects. 

The  mode  adopted  to  exercise  the  equitable  jurisdiction,  in  this 


202  SUPREME  COURT  [Lancaster 

[Doner  v.  Stauffer. 

case  was  a  proper  mode  to  effect  the  object.  It  is  in  effect  between 
the  partners,  although  nominally  between  the  separate  creditors 
of  each  partner.  But  it  is  a  feigned  issue,  and  no  matter  who  are 
nominally  on  the  record,  the  substance  is  to  try  the  right  between 
all  parties. 

The  mode  of  these  feigned  issues  is  not  the  subject  of  error. 
They  are  to  inform  the  conscience  of  the  court,  and  the  substance 
only  is  regarded:  Neffv.  Barr,  14  S.  &  R.  166. 

It  is  not  necessary  that  there  should  have  been  an  execution  in 
favor  of  the  joint-creditors.  Their  right  does  not  depend  on  this, 
but  on  the  lien  in  favor  of  the  partners. 

The  court  declined  hearing  Parke  and  Montgomery,  for  the 
defendants  in  error. 

Hopkins,  for  the  plaintiffs  in  error. — The  money  came  into  the 
court  by  wrong ;  the  whole  effects,  not  merely  the  right  to  the  sur- 
plus after  the  payment  of  the  partnership  debts  were  sold;  although 
the  sheriff  could  of  right  sell  but  that  surplus  :  Hankey  v.  Garrett, 
1  Vesey  242 ;  West  v.  Skip,  Id.  456 ;  Taylor  v.  Fields,  4  Vesey, 
Jr.  396. 

Enough  must  be  left  for  partnership  debts.  When  the  sale  took 
place  the  partnership  was  gone:  Pierce  v.  Jackson,  6  Mass.  242; 
Cooper  v.  Chitty,  1  Burr.  20 ;  Shaw  v.  Tunbridge,  2  W.  Black. 
1064. 

Here  the  entire  fund  was  brought  into  court  for  distribution 
among  all  parties  in  interest. 

A  motion  to  distribute  a  fund,  in  Pennsylvania,  is  in  the  nature 
of  a  bill  in  equity,  and  comes  instead  of  the  audita  querela,  which 
has  fallen  into  disuse.  It  extends  itself  to  embrace  all  questions 
involved,  and  all  the  parties  in  interest.  The  joint-creditors  had 
a  direct  interest,  represented  by  the  assignees  of  an  insolvent 
partnership.  Their  interest,  and  that  of  Daniel  Howry,  is  identi- 
fied ;  arid  if  these  creditors  so  represented,  do  not  recover  this 
fund,  their  rights  must  be  destroyed.  The  fact  that  the  assign- 
ment was  made  subsequent  to  the  execution,  can  have  no  effect. 
The  assets  of  the  partnership  are  in  yremio  leyis,  until  they  can 
assert  their  rights. 

The  issue  directed  ex  vi  termini,  embraces  the  question  as  to  the 
joint-creditors,  as  upon  the  settlement  of  the  accounts  of  the  firm 
only,  can  the  share  of  Eshelman,  in  the  partnership  fund  be 
ascertained. 

What  is  the  mode  of  investigation  where  the  funds  of  a  partner- 
ship are  in  court  for  distribution  ? 

In  chancery,  where  a  court  of  chancery  exists,  an  injunction 
would  issue  to  stay  proceedings  at  law,  and  distribution  would  be 
made  in  that  court  so  as  to  do  equity.  Lord  Mansfield,  however, 


Dec.  1829.]  OF  PENNSYLVANIA.  203 

[Doncr  r.  Stuuffer.) 

thought  that  where  the  common-law  court  was  in  possession  of  the 
fund,  a  resort  to  a  court  of  equity  was  unnecessary ;  but  that  the 
common-law  court  should  distribute  it  according  to  equity.  Here 
our  courts  are  armed  with  equitable  as  well  as  legal  powers,  and 
they  have  long  ago  broken  legal  trammels,  and  asserted  principles 
necessary  to  do  equity  and  justice.  Eat  boni  judices  ampliari  juris- 
ditioncm :  Edy  v.  Davidson,  Douglass  650 ;  Penn.  Agric.  &  Manf. 
Bank  v.  Stambaugh's  Adm'rs,  13  S.  &  R.  299.  In  this  case  the 
funds  were  brought  into  court  upon  execution,  and  the  court,  to  do 
equity,  investigated  the  rights  of  parties  under  the  fourteenth  sec- 
tion of  our  law  relating  to  intestacy,  and  decreed  in  favor  of  a  bond 
creditor,  as  to  the  fund  so  raised ;  although  the  bond  creditor  was 
no  party  to  the  execution  and  had  no  judgment. 

Where  there  are  complicated  rights,  the  court  will,  on  the  appli- 
cation of  the  sheriff,  suspend  proceedings  until  those  rights  can  be 
ascertained,  in  order  that  the  sheriff  may  make  a  correct  return : 
Shaw  v.  Tunbridge,  '2  W.  Black.  1UG4.  He  referred  also  to  Knox 
v.  Summers,  4  Yeates  447. 

Where  the  separate  creditor  had  actually  obtained  the  fund 
under  a  judgment,  yet  he  was  not  protected  by  it  from  the  other 
partner :  Bank  of  N.  A.  v.  McCall,  3  Binn.  371. 

Where  the  claim  is  either  by  assignment,  or  under  execution,  it 
is  only  to  the  surplus  after  the  payment  of  partnership  debts  :  Nicoll 
v.  Mumfort,  4  Johns.  Ch.  525.  This  case  contemplates  bringing  the 
money  made  on  execution  into  court,  and  overrules,  in  effect,  the 
decision  in  2  Johns.  Ch.  548,  as  to  an  injunction  to  stay  a  separate 
creditor,  in  case  of  partnership  effects. 

The  case  of  Morcly  v.  Stromborn,  3  Bos.  &  Pull.  54,  is  at  law. 
In  equity  it  is  different,  and  it  is  so  said  in  this  case ;  and  Lord 
Mansfield  held,  that  the  rule  should  be  the  same  at  law. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — It  is  settled  by  a  train  of  decisions  in  the  Ameri- 
can, as  well  as  the  British  courts,  that  the  joint  effects  belong  to 
the  firm,  and  not  to  the  partners,  each  of  whom  is  entitled  only  to 
a  share  of  what  may  remain  after  payment  of  the  partnership  debts  : 
and  consequently,  that  no  greater  interest  can  be  derived  from  a 
voluntary  assignment  of  his  share,  or  a  sale  of  it  on  execution. 
That  a  contract  which  enables  the  parties  to  keep  a  class  of  their 
creditors  at  bay,  and  yet  retain  the  indicia  of  ownership,  should  not 
have  been  deemed  within  the  Statutes  of  Elizabeth,  is  attributable 
exclusively  to  the  disposition  universally  manifested  by  courts  of 
justice  to  encourage  trade.  But  such  as  it  is,  has  the  contract  of 
partnership  been  established  :  and  the  principle  which  enables  the 
partners  to  pledge  to  each  other,  the  joint  effects  as  a  fund  for  pay- 
ment of  the  joint  debts,  has  introduced  a  preference  in  favor  of  the 
joint  creditors,  founded  on  no  merits  of  their  own,  but  on  the  equity 


204  SUPREME  COURT  [Lancaster 

[Doner  r.  Stauffer.] 

which  springs  from  the  nature  of  the  contract  between  the  partners 
themselves.  The  author  of  the  Commentaries  on  American  Law, 
vol.  3,  p.  38,  attributes  this  preference  to  an  inherent  equity  in  the 
joint  creditors  themselves,  arising  from  a  supposed  acquisition  of 
the  partnership  effects  from  their  means.  The  opinions  of  ChaYi- 
cellor  Kent  are  so  justly  entitled  to  deference  that  no  prudent  judge 
will  differ  from  him  without  hesitation  ;  yet  I  cannot  but  adhere  to 
the  opinion  I  expressed  in  Bell  v.  Newman,  5  S.  &  R.  92,  that  in 
cases  of  insolvency  or  bankruptcy,  in  which  alone  the  question  of 
priority  can  be  material,  the  joint  effects  consist  of  the  wreck  of 
the  capital  originally  embarked.  Under  a  joint  commission,  by 
which  the  effects  pass  to  the  assignees,  while  the  partners  are  per- 
sonally discharged,  I  admit,  that  the  preference  of  the  joint  cred- 
itors has  no  oth-er  foundation,  if  it  has  any  at  all,  than  this  supposed 
inherent  equity  ;  and  the  best  elementary  writer  on  the  subject  so 
disposes  of  the  difficulty  :  Gow  on  Partnership  341—2.  But  in  the 
case  of  a  separate  commission,  Lord  Eldon  expressly  puts  it  on 
the  particular  equity  of  the  partners  themselves,  Ex  parte  Ruffin, 
6  Vesey  126,  and  in  the  case  of  an  execution,  Chief  Baron  McDon- 
ald does  the  same  :  Taylor  v.  Fields,  4  Vesey  396.  To  secure  the 
firm  from  the  extravagance  of  its  members,  by  preventing  the  capi- 
tal from  being  withdrawn  from  the  purposes  of  the  partnership,  the 
stock  is  pledged  for  the  burden  which,  from  the  nature  of  the  con- 
nection, is  to  be  borne  by  all ;  but  in  moulding  the  law  of  partner- 
ship to  its  present  form,  the  credit  gained  by  giving  the  joint  cred- 
itors a  preference,  was,  if  an  object  at  all,  a  very  remote  one.  Ac- 
cordingly, with  the  single  exception  of  a  joint  commission,  we  find 
that  wherever  the  partners  are  not  individually  involved,  the  joint 
creditors  have  no  preference  whatever;  as  in  the  instance  of  a  bona 
fide  assignment  of  the  effects,  to  one  of  the  partners,  after  the  part- 
nership has  been  dissolved. 

In  consequence  of  the  rule  as  I  have  stated  it,  a  separate  execu- 
tion-creditor sells,  not  the  chattels  of  the  partnership,  but  the  inter- 
est of  the  partner,  encumbered  with -the  joint  debts;  and  the  joint 
creditors  therefore  have  no  claim  to  the  proceeds,  To  allow  them 
the  proceeds,  and  recourse  to  the  property  in  the  hands  of  the  pur- 
chaser, would  subject  it  to  a  double  satisfaction.  Neither  can 
they  take  the  proceeds  or  the  property  at  their  election.  They  can 
interfere  at  all,  only  on  the  ground  of  a  preference  which  has 
regard  only  to  the  partnership  effects,  and  these  have  not  been 
sold,  but  only  the  subordinate  interest  of  the  partner,  which  was, 
strictly  speaking,  his  separate  estate.  Their  recourse,  therefore,  is 
necessarily  to  the  property  in  the  hands  of  the  purchaser.  Now, 
had  the  sheriff  sold  the  interest  of  but  one  of  the  partners,  the 
execution-creditor  would  have  clearly  been  entitled  to  the  proceeds. 
But  although  he  sold  the  whole  stock  at  one  operation,  on  separate 


Dec.  1829.]  OF  PENNSYLVANIA.  205 

[Duner  v.  Stauffer.J 

executions  against  both,  there  was,  in  contemplation  of  law,  a 
separate  sale  of  the  interest  of  each.  What  then  would  have  been 
the  effect,  had  these  sales  been  made  consecutively  ?  The  first,  in 
the  order  of  time,  would  have  passed  the  interest  of  the  partner, 
subject  to  the  equity  of  his  co-partner,  and  the  execution-creditor 
would  have  been  entitled  to  the  price.  But  this  equity,  together 
with  the  remaining  interest  of  the  other  partner,  would  have  passed 
by  the  succeeding  sale  to  the  same  purchaser;  the  execution  cred- 
itor, in  that  instance,  also  taking  the  proceeds.  Can  it  make  a 
difference,  then,  that  instead  of  being  consecutive,  these  two  sales 
were  simultaneous?  A  curious  question  might  arise,  whether 
separate  purchasers  of  the  shares  respectively,  would  stand  in  the 
relation  of  partners,  so  as  to  enable  the  joint-creditors  to  follow  the 
goods.  It  seems  to  me  they  would  not,  because  not  personally  in- 
volved in  payment  of  the  debts. 

Here,  however,  where  the  shares  of  the  partners  are  united  in 
the  same  purchaser,  every  semblance  of  partnership-equities  is  at 
an  end.  As  regards  the  goods  in  the  hands  of  the  purchasers,  this 
is  conceded ;  but  the  joint-creditors  insist  that  the  proceeds  are  to 
be  substituted  for  the  goods,  and  subjected  to  the  same  equities. 
That  might  be  done  if  the  proceeds  belonged  to  the  partners ;  but 
it  is  not  easy  to  imagine  how  they  arc  to  be  treated  as  the  owners 
of  money  raised  by  a  sale  on  executions  against  them.  For  what 
purpose  should  the  ownership  of  it  be  vested  in  them,  even  for  an 
instant?  Not  to  give  the  joint-creditors  a  preference,  for  that 
would  make  the  rights  of  the  partners  depend  on  the  claims  of 
the  joint-creditors,  who,  on  the  contrary,  can  claim  nothing  but  by 
virtue  of  the  lien,  where  there  is  one,  of  the  partners. 

To  say  that  the  partners  have  such  a  lien  because  the  joint-cred- 
itors have  an  equity,  and  that  the  joint-creditors  have  an  equity 
because  the  partners  have  a  lien,  would  be  to  argue  in  a  circle. 
Here  the  partners  cannot  be  prejudiced  in  respect  of  their  claims 
on  each  other,  the  advantage  to  be  gained  from  an  application  of 
the  joint  effects  to  their  separate  debts,  being  mutual  and  equal. 
The  consequences  are  precisely  the  same,  as  if  the  effects  had  been 
sold  on  execution  against  both.  We  are,  therefore,  of  opinion  that 
the  joint-creditors  can  not  interpose ;  and  consequently,  that  the 
rejection  of  the  evidence,  as  well  as  the  direction  to  the  jury,  was 
substantially  right. 

I  have  considered  the  question  on  principles  applicable  to  it.  in 
analogy  to  well  settled  parts  of  the  law  of  partnership,  rather  than 
on  authority  bearing  directly  on  the  point.  Hut,  since  this  opinion 
was  drawn,  my  brother  HrsToX  has  directed  my  attention  to  the 
case  of  Brinkerhoff  v.  Marvin,  f>  Johns.  Oh.  300,  which  is  direct 
to  the  point ;  so  that  independent  of  analogies,  we  have  an  authority 
on  which  we  might  safely  rule  the  cause.  But  both  principle  and 


206  SUPREME  COURT  [Lancaster 

[Doner  p.  Stauffer.] 

authority  are  adverse  to  the  preference  claimed ;    and  the  issue, 
therefore,  was  correctly  found  for  the  plaintiff. 

HUSTON,  J.,  dissented. 

ROGERS,  J.,  was  sitting  at  Nisi  Prius,  and  took  no  part  in  the 
judgment. 

Judgment  affirmed. 

Referred  to,  3  Wright  273,  287 ;  8  Id.  509 
Commented  on,  9  Barr  126. 
Distinguished,  2  C.  263 :  5  Id.  14. 
Approved,  I  II.  474,  475. 

Followed,  8  II.  234;  9  Id.  83  ;  8  C.  452;  3  Wright  401  ;  3  Gr.  215;  7 
Smith  12  ;  17  Id.  334. 


Dec.  1829.1  OF  PENNSYLVANIA.  207 


Konigmacher  against  Kimmel. 

B.  K.,  in  1815,  was  appointed  guardian  of  J.  ;  shortly  after,  J.  W.,  broth- 
er-in-law of  J.,  and  administrator  of  the  estate  of  his  father,  nettled  his  admin- 
istration-account, by  which  a  balance  was  found  in  his  hands.  In  1810,  B. 
K.  received  part  of  that  balance  in  cash,  and  for  the  residue  coming  to  his 
ward,  took  J.  W.'s  bond  without  security.  At  that  time,  J.  W.  was  in  good 
circumstances;  he  kept  a  store,  and  up  to  the  year  1820,  continued  to  have 
a  large  amount  of  real  and  personal  property  in  his  possession ;  then  he  sold 
a  tract  of  land  which  he  had  bought  at  a  very  high  price,  at  a  loss  of  about 
SI 2,000,  and  shortly  after  made  an  assignment  for  the  benefit  of  his  credit- 
ors, by  which  it  appeared  that  he  was  largely  indebted.  The  assignees  paid 
fifty-five  percent  of  his  debts.  Up  to  the  spring  of  18'20,  many  of  his  neigh- 
bors, ami  among  them  the  mother  and  another  brother-in-law  of  J.,  loaned 
him  different  sums  of  money.  Ildil,  that  B.  K.,  the  guardian,  was  not 
chargeable  with  the  loss  upon  the  bond  he  had  taken  of  J.  W. 

More  ought  not  to  be  expected  from  guardians  than  common  prudential 
care;  they  should  not  be  made  liable,  unless  under  unfavorable  circum- 
stances, their  acts  expose  them  to  the  animadversion  of  the  law,  for  supine 
negligence,  showing  carelessness  of  duty,  and  of  the  ward's  interest ;  or 
where  the  loss  is  occasioned  by  their  own  act  in  giving  credit  without  taking 
security. 

If  executor  or  administrator  sells  goods  of  testator  or  intestate,  and  do  not 
take  security  for  the  price,  he  is  generally  charged  with  the  amount.  If 
the  bail  or  security  is  a  man  generally  reputed  good  for  so  much,  it  is  suffi- 
cient, it  is  not  necessary  that  he  should  be  a  freeholder.  So  if  a  guardian 
had  in  his  hands  money  of  his  ward,  and  puts  it  out.  he  will  generally  be 
liable,  unless  he  take  surety  in  the  note,  Ac.,  not  so  if  he  take  a  mortgage 
on  land,  and  an  old  title,  unknown  at  the  time,  should  sweep  away  the  pro- 
perty mortgaged. 

But  where  the  fund  never  actually  came  to  the  hands  of  the  guardian, 
there  is  a  difference  ;  he  is  not  bound  instantly  to  sue  in  all  directions  if.  to 
all  appearance,  the  money  is  safe. 

Common  skill,  common  prudence,  and  common  caution,  are  all  that  courts 
require  from  trustees. 

In  case  of  appeal  from  a  decree  of  the  Circuit  Court,  a  eertiorari  is  not 
necessary,  nor  can  the  prothonotary  demand  his  fee  before  entering  it. 

THIS  was  an  appeal  frcra  the  decree  of  the  Circuit  Court,  con- 
firming the  decree  of  the  Orphans'  Court  of  Lan<'<i*tcr  county,  in 
the  matter  of  the  guardianship  account  of  Benjamin  Konigmacher. 
the  appellant,  as  guardian  of  Jacob  Kimmel,  the  appellee,  charging 
the  guardian  with  the  amount  of  a  bond  given  by  John  Woidman, 
to  the  guardian,  on  account  of  money  due  the  ward,  and  which  was 
lost  by  the  insolvency  of  Woidman. 

Upon  breaking  the  case  in  this  court,  Porter,  for  the  appellee, 


208  SUPREME   COURT  [Lancaster 

[Konigmacher  v.  Kimmel.J 

moved  to  quash  the  appeal,  on  the  ground  that  it  had  not  been  filed 
here  in  time.  It  appeared  that  the  record  of  the  appeal  had  been 
taken  to  the  prothonotary  in  due  time,  but  that  he  refused  to  receive 
it  because  no  certiorari  had  been  issued  in  the  case,  and  his  fee  of 
31. 50  was  not  paid.  The  court  overruled  the  motion.  A  certiorari 
is  not  necessary,  nor  can  the  prothonotary  demand  his  fee  before 
entering  the  appeal.  . 

The  exception  in  this  court  was  the  charge  to  the  guardian  of  the 
money  lost  by  the  insolvency  of  Weidman,  and  at  all  events  to  the 
interest  on  it.  The  decree  in  the  Circuit  Court  was  made  without 
prejudice,  and  with  a  view  to  a  decision  by  the  Supreme  Court. 

It  appeared  from  the  evidence  that  Jacob  Konigmacher  and  John 
Weidman  were  administrators  of  Jacob  Kimmel's  estate,  and  settled 
their  administration  account  in  the  fall  of  1815.  John  Weidman 
was  the  son-in-law  of  the  intestate,  and  on  the  settlement  of  the 
account,  had  in  his  hands  47G£.  4s.  Gel.  Benjamin  Konigmacher 
was  appointed  guardian  of  Jacob  Kimmel,  a  minor  son  of  the  intes- 
tate, on  the  25th  of  September  1815,  and  on  the  1st  of  April  1816, 
received  from  Weidman  $200  in  cash,  and  took  his  bond  for  the 
residue  of  his  ward's  share.  The  interest  was  paid  on  this  bond 
at  the  end  of  the  first  year,  but  no  interest  was  paid  after  that  time. 

In  the  autumn  of  1820,  Weidman  made  a  general  assignment  of 
his  property,  for  the  benefit  of  his  creditors,  and  the  assignees  had 
paid  about  fifty-five  per  cent,  of  his  debts. 

The  Orphans'  Court  charged  the  guardian  with  the  whole  amount 
of  the  bond,  and  interest  thereon,  up  to  the  settlement  of  his 
account. 

The  appellant  examined  twelve  witnesses,  ten  of  whom  were 
creditors  of  John  Weidman,  and  all  but  two  of  whom  had  lost  by 
him.  The  other  two  had  been  clerks  in  his  store. 

The  proof  of  all  was  that  Weidman  had  a  farm,  and  kept  a 
store  ;  was  considered  perfectly  honest,  was  managing  well,  sober, 
industrious  and  by  all  supposed  to  be  growing  rich.  No  one  of 
these  had  asked  security  from  him  at  the  time  of  lending  their 
money,  nor  had  sued  him.  One  who  was  executor  of  another 
estate,  had,  shortly  before  his  assignment,  got  a  bond  on  another 
per.-:on  from  Weidman,  in  lieu  of  his  own.  Another  had  purchased 
a  plantation  from  Weidman,  and  then  became  :i  debtor  instead  of 
creditor.  Two  of  them  had  lent  him  money  in  1811),  and  one  in 
the  spring  of  1820.  The  men  who  had  been  clerks  in  the  store, 
proved  his  character  and  credit  up  almost  to  the  last.  The  mother 
of  him  who  was  clerk  when  he  assigned,  had  loaned  J.  Weidman 
200/.,  and  he  did  not  think  it  necessary  to  warn  her,  that  it  was  in 
danger  ;  nor  did  she  either  sue  or  ask  security.  His  failure  was 
accounted  for  in  this  way,  when  property  was  rising  and  very  high 
'n  this  county,  he  purchased  a  tract  of  land  at  Gil.  Gs.  Gd.  per  acre. 


Dec.  1829.]  OF  PENNSYLVANIA.  209 

[Koniginacher  r.  Kimmel.] 

Property  fell,  and  he  offered  it  for  sale — at  length  for  sale  at  public 
vendue.  On  the  20th  October  1820,  it  was  bid  to  $90  per  acre ; 
Weidman  thought  it  too  low,  and  endeavored  to  get  a  higher  price ; 
but  finding  he  could  not,  he,  on  the  12th  of  November,  closed  with 
the  bidder,  and  conveyed  it.  On  examining  his  affairs,  he  found 
the  loss  on  this  single  purchase,  of  about  $78  per  acre,  had  rendered 
him  insolvent,  and  on  the  17th  of  November  he  made  an  assign- 
ment, as  before  stated.  On  that  assignment  was  an  exact  list  of  all 
his  creditors,  and  the  amount  due  to  each.  The  number  was  about 
thirty,  and  the  amount  exceeded  $15,000.  Many  of  these  were  bond 
creditors  for  money  lent ;  not  one  of  whom  had  asked  for  security 
at  the  time  of  the  loan,  nor  had  got  it  since,  nor  had  sued  him. 
The  appellee  examined  the  mother  of  the  ward,  two  of  his  brothers- 
in-law,  and  took  the  depositions  of  four  witnesses  who  had  given 
them  before,  at  the  request  of  the  appellant. 

The  mother  of  the  ward  swore  she  had  lent  Weidman  money,  but 
never  asked  security ;  that  after  the  sale  of  Weidman's  land  at  a 
vendue,  she  told  Konigmacher  to  secure  himself;  that  she  wished 
her  son's  money  left  in  Weidman's  hands ;  that  her  grandfather 
never  liked  Weidman,  but  everybody  else  spoke  well  of  him  ;  that 
she  never  believed  he  would  fail. 

One  brother-in-law  proved  that  he  himself  had  loaned  money  to 
Weidman,  and  got  secured  about  three  weeks  before  he  assigned ; 
that  he  saw  Konigmacher  and  advised  him  to  get  security ;  but  he 
met  Brubecker,  another  brother-in-law,  who  told  him  Weidman  was 
in  no  danger,  and  Konigmacher  said  he  would  risk  it.  This  was 
about  the  time  of  the  vendue.  He  told  Konigmacher  he  thought 
he  could  get  from  Weidman  bonds  on  Barnhart ;  he  did  not  know 
who  got  those  bonds  ;  but  Barnhart  turned  out  to  be  insolvent. 

The  other  brother-in-law,  who  cross-examined  all  the  witnesses 
on  the  part  of  the  appellee,  proved  that  he  knew  Weidman  was  in 
debt,  the  amount  of  his  debts,  and  to  whom  due,  in  1819 ;  but  he 
expressly  said  he  never  told  this  to  any  person,  although  he  might 
have  said  he  was  much  indebted — that  he  did  not  tell  Konigmacher. 
Keller,  as  representative  of  Houk's  estate,  had  got  security  about 
the  time  of  the  sale ;  but  he  said  it  is  disputed  whether  he  will 
recover ;  it  is  still  in  law.  He  and  llocker,  who  lent  Weidman 
200£.  in  1819,  said  the  credit  of  Weidman  was  not  so  good  in  1820 
as  it  had  been,  llocker  neither  applied  for  security  nor  sued  ;  and 
on  cross-examination  they  both  fixed  the  time  in  1820,  when  Weid- 
man's credit  failed,  to  be  about  the  time  of  the  vendue,  at  which  he 
sold  his  land  at  such  a  loss. 

Hopkins,  for  the  appellant. — A  guardian  is  bound  to  exercise  the 
same  discretion  and  judgment,  only  as  a  prudent  man  would  in  his 
own  case :  West  v.  Skip,  2  Yes.  240.  In  order  to  involve  a  man 

1  P.  &  W.— U 


210  SUPREME  COURT  [Lancaster 

[Konigmneher  v.  Kimmel.] 

•who  acts  without  interest,  as  in  case  of  a  trustee  or  bailee,  there 
must  be  gross  default :  Palmer  v.  Jones,  1  Vern.  144 ;  2  Fon- 
blanque's  Eq.  180 ;  Osgood  v.  Franklin,  2  Johns.  Ch.  1,  27,  28. 

He  is  not  chargeable  with  imaginary  values,  or  what  he  has  not 
received,  unless  in  case  of  gross  negligence,  amounting  to  wilful 
default ;  and  courts  will  not  strike  a  terror  into  such  as  act  as 
trustees,  by  adopting  a  more  rigid  rule :  Bercher  v.  Parsons,  Am- 
bler 219 ;  Thompson  v.  Brown,  4  Johns.  Ch.  619,  628. 

Executors  and  administrators,  acting  with  good  faith,  and  not 
being  in  default,  are  not  liable  for  a  loss :  Brown  v.  Litton,  1  P. 
Wins.  141. 

A  bailee,  who  derives  no  advantages  from  his  undertaking,  is 
responsible  only  for  gross  neglect.  Gross  neglect  is  the  want  of 
that  care  which  every  man,  how  negligent  soever,  takes  of  his  own 
affairs  :  Jones  on  Bailment  118,  119. 

The  guardian  acted  in  this  case  with  good  faith  and  with  ordinary 
care,  which  is  all  that  is  required  of  him.  He  referred  also  to  Pirn 
v.  Downing,  11  S.  &  It.  66 ;  Johnson's  Appeal,  12  Id.  317 ;  Bon- 
sail's  Appeal,  1  llawle  260. 

Porter,  for  the  appellee,  contended  that  there  had  been  gross 
negligence  on  the  part  of  the  guardian ;  that  although  the  bond 
was  taken  in  1816,  and  due  in  one  year,  he  did  not  so  much  as 
observe  the  ordinary  care  of  demanding  and  obtaining  the  payment 
of  the  interest.  The  neglect  of  the  obligor  to  discharge  the  inte- 
rest was  enough  to  put  him  on  his  guard.  He  went  into  a  com- 
mentary upon  the  evidence,  and  argued  that  whatever  might  have 
been  the  apparent  circumstances  of  Weidman  up  to  that  time,  that 
in  the  spring  of  1819  they  were  suspicious,  and  the  guardian  not- 
withstanding took  no  step  to  secure  his  ward's  money. 

If  it  be  made  out  to  a  reasonable  probability  that  his  ward's 
money  is  lost  by  the  negligence  of  the  guardian,  he  is  responsible : 
Pirn  v.  Downing,  11  S.  &  R.  66. 

In  the  case  of  Rawle,  there  was  the  exercise  of  an  erroneous 
judgment,  but  without  any  negligence;  and  in  P.  Wms.,  the  case 
is  of  a  loss  in  consequence  of  the  depreciation  of  the  land  upon 
which  the  debt  was  secured. 

Reply. — It  is  the  harshest  thing  in  the  world  to  make  a  trustee 
responsible  where  he  is  in  no  defanlt:  Jackson  v.  Jackson,  12  S. 
&  R.  324;  Jackson  v.  Jackson,  1  Atkins  513.  If  a  man  is  inca- 
pable or  careless  by  habit,  it  is  his  misfortune  ;  but  if  there  be  fault 
in  such  case,  it  is  of  those  who  appoint  him.  Here  the  money 
was  out  when  the  guardian  was  appointed,  in  the  hands  of  one  of 
the  members  of  the  family,  in  whom  they  confided.  He  went 
into  a  view  of  the  facts  to  show  that  the  circumstances  of  the 


Dec.  1829.]  OF  PENNSYLVANIA.  211 

[Konigmucher  r.  Kimmel.] 

obligor  were  ostensibly  good,  until  he  sold  his  land  in  1820,  when 
his  immense  loss  was  revealed  to  him.  This  calamity  had  its  origin 
in  the  depreciation  of  land,  which  no  prudence  could  have  foreseen 
nor  vigilance  guarded  against.  Up  to  this  time  he  had  the  unre- 
served confidence  of  his  neighbors,  proved  by  the  fact  that  so  many 
loaned  him  money  without  security.  A  prudent  man  would  have 
pronounced  the  investment  a  good  one,  and  the  guardian,  would  not, 
under  the  circumstances,  have  been  justified  in  calling  it  in.  In 
leaving  it  in  his  hands,  the  guardian  did  nothing  more  than  other 
men  did  with  their  own  money.  Under  these  circumstances,  to 
charge  him  with  the  loss,  would  produce  that  terror  in  guardians 
spoken  of  by  Lord  Ilardwicke;  arid  calculated  to  deter  prudent  men 
from  assuming  an  office,  which  in  itself  is  sufficiently  onerous,  and 
already  undertaken  with  great  reluctance.  Nothing  but  'supine 
negligence  should  make  him  liable.  The  case  of  Pirn  v.  Down- 
ing, where  the  guardian  was  exonerated,  under  circumstances 
against  him  much  stronger  than  in  our  case,  recognises  the  doc- 
trine, that  to  charge  a  guardian  there  must  be  lata  culpa  or  mala 
fides. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J.,  (who  stated  the  facts  of  the  case).  It  is  a  matter 
constantly  occurring  in  every  county,  that  executors  or  guardians 
are  charged  with  losses,  and  to  settle,  if  possible,  some  rule  is 
desirable.  Perhaps  this  case  was  so  peculiar  in  some  of  the  circum- 
stances as  to  call  for  a  decision,  in  part  founded  on  those  circum- 
stances. The  old  cases  at  law  as  to  the  liability  of  executors,  guar- 
dians, &c.,  are  of  such  a  nature  as  to  excite  astonishment.  They 
would  seem,  by  consent,  to  have  been  set  up,  like  a  cock  at  shrove- 
tide,  to  be  thrown  at  by  all  who  delight  in  such  sport.  If  an  ex- 
ecutor could  not  agree  with  a  debtor  of  the  estate,  and  to  save 
expense,  referred  the  dispute  to  arbitrators,  who  made  a  deduction 
from  his  demand,  the  executor  was  charged,  and  must  make  up  this 
deduction  out  of  his  own  pocket ;  and  it  did  not  avail  him  to  prove 
that  the  deduction  was  properly  made.  This  is  cited  as  law  bv 
Toller,  although  it  has  not  been  the  law  for  several  centuries.  It 
first  changed  to  this,  that  a  submission  of  a  matter  to  arbitration, 
was  an  admission  of  assets;  now  that  is  not  so,  and  it  is  at  length 
considered,  truly,  as  a  mode  of  ascertaining  matters  on  which  the 
parties  cannot  agree.  Courts  of  equity  early  interfered  in  the  case 
of  executors,  &c.,  and  as  they  were  then  obliged,  in  every  case  of 
a  recovery  on  a  bond,  to  interfere  to  save  the  defendant  from  pay- 
ing the  whole  penalty,  so  they  interfered  to  save  executors  and  ad- 
ministrators from  paying  what  in  justice  and  conscience  they  ought 
not  to  pay. 

This  case  has  been  fully  and  ably  argued,  and  this  court  is  not 
unanimous.  I  proceed  to  state  the  ground  on  which  the  majority 


212  SUPREME  COURT  [Lancaster 

[Konigmacher  v.  Kimmel.] 

have  come  to  a  conclusion.  I  have  said  the  old  cases  are  unreason- 
able, and  are  not  law  now.  There  was  a  time  when  the  affairs  of 
executors  were  principally  settled  either  in  ecclesiastical  courts,  or 
in  courts  of  law ;  but  as  the  jurisdiction  of  chancery  increased,  it 
included,  along  with  other  trusts,  the  accounts,  settlements  and 
responsibilities  of  executors,  administrators  and  guardians,  which 
are  now  almost  exclusively  determined  in  that  court.  I  shall  not 
go  into  all  the  authorities,  nor  trace  this  jurisdiction  from  its  origin, 
but  content  myself  with  a  few  cases.  In  Knight  <>.  Earl  of  Ply- 
mouth, 3  Atkyns  480,  a  receiver  appointed  in  chancery  for  the  rents 
of  a  minor,  received  TOO/.,  at  Worcester.  There  being  some  ex- 
pense and  risk  in  remitting  to  London,  in  specie,  he  gave  it  to  Wins- 
more,  a  trader  in  good  credit,  and  took  his  bills  on  London.  The 
bills  were  protested,  and  Winsmore  became  a  bankrupt  within  a 
week  ;  it  was  proved,  however,  that  at  the  time  the  bills  were  taken 
his  credit  was  good  as  any  man's  in  Worcester.  The  receiver  was 
not  charged  with  the  money,  although  it  was  urged,  that  not  being 
a  trustee  appointed  by  the  party,  but  by  the  law,  he  must  answer 
with  the  utmost  strictness ;  that  he  received  compensation  too  for 
services,  and  therefore  was  held  to  greater  strictness  In  1  P.  Wms. 
141,  where  an  executor,  without  being  authorized  by  a  decree,  puts 
out  money  on  real  security,  he  is  not  liable  though  the  money  is 
lost,  if  given  on  security  reputed  good,  and  no  fraud. 

Ex  parte  Belsliier,  Ambler  218.  The  assignee  of  a  bankrupt, 
who  also  receives  a  compensation,  employed  a  broker  to  sell  tobacco, 
who  received  the  price,  and  about  ten  days  after  died  insolvent. 
The  commissioners  of  bankruptcy  charged  the  assignee  with  the 
loss ;  but  on  application  to  chancery,  the  chancellor  said,  if  the 
assignee  was  charged  in  this  case,  no  sane  man  would  ever  become 
an  assignee.  He  entered  at  large  into  the  law,  referred  to  several 
cases,  and  came  to  the  conclusion,  that  it  is  not  necessary,  in  every 
case,  to  take  security  ;  if  the  trustees  act  for  the  trust  as  prudent 
persons  act  for  themselves,  and  in  the  usual  way  of  business,  they 
are  not  liable.  In  Jones  v.  Lewis,  2  Vernon  240,  we  find  a  still 
stronger  case,  and  to  the  same  effect — after  decree  to  account  and 
to  pay  over,  an  administratrix  instead  of  going  to  the  plaintiff  and 
paying,  left  the  money  with  her  solicitor,  to  pay  when  called  for ; 
he  was  robbed,  and  she  was  excused.  It  is  again  put  on  the  ground 
of  her  acting  as  prudent  people  act  in  their  own  cases ;  to  keep  the 
trust  fund  as  they  keep  their  own. 

I  could  trace  the  same  doctrine  through  every  case  from  that 
time.  In  a  neighboring  state,  a  chancellor  of  great  eminence  for 
learning,  industry  and  ability,  has  fully  adopted  the  same  doctrine; 
and  it  is  settled  in  New  York,  that  executors,  administrators  or 
guardians,  are  not  liable  beyond  what  they  actually  receive;  unless 
in  case  of  gross  negligence.  Where  they  act  as  others  do  with 
their  own  goods,  with  good  faith,  and  not  gross  negligence,  they 


Dec.  1829.]  OF  PENNSYLVANIA.  213 

[Konigmacher  v.  Kimmel.] 

are  not  liable ;  indeed  the  first  case  is  stronger  than  that :  See  2 
Johns.  Ch.  27,  et  seq. ;  4  Id.  619. 

This  subject  has  been  considered  in  this  court ;  I  shall  not  review 
all  the  cases.  In  Pimm  v.  Downing  and  Stalker,  11  S.  &  R.  (>7, 
we  have  a  case  much  stronger  than  this.  The  money  was  not 
forced  from  the  administrators  (the  mother  and  uncle  of  the  ward), 
for  three  years,  and  was  lost ;  for  this  the  guardian  was  not  held 
liable  :  part  was  in  the  hands  of  the  joint-guardian,  and  by  Stalker 
given  to  his  co-guardian,  who  was  going  into  trade;  for  this  he  was 
held  liable.  The  principle  settled  in  that  case,  is,  that  for  gross 
negligence,  trustees  are  liable,  and  for  their  own  acts  in  not  care- 
fully securing  money,  which  was  in  their  hands,  and  put  out  by 
them ;  but  for  not  suing  at  once,  a  mother,  who  was  an  adminis- 
tratrix, and  in  good  credit,  or  not  suing  her  when  they  first  heard 
of  her  insolvency,  if  no  probability  of  recovering  at  that  time,  they 
were  not  answerable. 

In  Johnson's  Appeal,  12  S.  &  R.  317,  the  matter  was  again 
fully  considered  ;  in  that  case  the  grounds  for  charging  the  guar- 
dian, were  stronger  than  in  this.  In  1815,  he  settled  with  the 
executors,  and  for  a  balance  to  his  ward  of  $1(572,  he  neither  took, 
nor  asked  security,  but  interest  was  paid  him.  In  1819,  the  exe- 
cutor settled  his  account,  and  a  balance  of  $9000  and  upwards  was 
in  his  hands;  the  guardian  took  no  step  to  recover  his  ward's  share 
for  seven  months.  In  1820,  he  applied  to  the  Orphans'  Court,  to 
have  security  or  that  the  executor  should  be  dismissed,  and  he  was 
dismissed.  It  is  true  that  the  money  was  not  payable  to  the  ward 
until  she  was  twenty-one,  but  the  executor  was  not  cited  to  give 
security,  until  he  was  totally  insolvent ;  yet  there  was  no  suit  nor 
judgment  against  him,  until  after  he  was  dismissed  by  the  Orphans' 
Court,  nor  no  evidence  that  he  was  of  doubtful  credit ;  nor  of  any 
notice  to  guardian,  except  by  deposition  of  the  widow,  who  had 
trusted  him,  and  who,  herself  had  no  security. 

It  is  there  said  to  be  the  harshest  demand  that  can  be  made  in 
equity,  to  make  a  trustee  answerable  for  what  never  was  in  his 
hands,  or  to  make  up  a  deficiency  not  owing  to  his  wilful  default. 
More  ought  not  to  be  expected  from  guardians  than  common  pru- 
dential care  ;  they  should  not  be  made  liable,  unless  under  unfavor- 
able circumstances,  their  acts  expose  them  to  the  animadversion 
of  the  law  for  supine  negligence,  showing  carelessness  of  duty  and 
of  the  ward's  interest,  or  when  the  loss  is  occasioned  by  their  own 
act,  in  giving  credit  without  taking  security,  when  they  sell  goods 
or  put  out  money  in  their  own  hands. 

"\\  here  executors  or  administrators  take  possession  of  the  goods 
of  the  deceased,  and  sell  them  (usually  in  this  country  at  auction), 
it  is  usual  to  require  from  the  purchaser,  of  such  as  are  not  sold  on 
credit,  surety  in  the  note;  if  this  is  not  taken,  the  executor  is 
generally  charged  with  the  amount,  for  he  had  the  goods  in  his  own 


214  SUPREME  COURT 

[Konigmacher  v.  Kimmel.] 

possession  ;  but  lie  is  not  obliged  to  take  a  freeholder  for  bail.  If 
the  bail  is  a  man  generally  reputed  good  for  so  much,  it  is  sufficient. 
So  if  a  guardian  has  on  hand  money  of  his  ward,  and  puts  it  out, 
he  will  generally  be  liable,  unless  he  take  a  surety  in  the  note.  I 
do  not  say  he  would  in  all  cases,  ex  gratia,  if  he  took  a  mortgage 
on  land,  and  an  old  title,  unknown  at  the  time,  should  sweep  away 
the  property.  In  short,  whenever  the  executor  or  guardian  actually 
has  the  fund,  and  disposes  of  it  to  another,  he  must  do  it  with  pro- 
per and  strict  caution,  as  a  prudent  man  would,  and  is  seldom  safe 
unless  he  does  take  security.  But  where  the  fund  never  actually 
comes  into  the  hands  of  a  guardian,  all  the  cases  make  a  difference; 
he  is  not  bound  instantly  to  sue  in  all  directions ;  the  mother, 
brothers,  or  brothers-in-law  of  the  ward,  are  not  to  be  harassed  to 
extremity,  if  to  all  appearance,  and  in  the  general  opinion  the 
money  is  safe  in  their  hands.  If  adults  of  the  family  have  funds 
in  the  same  situation,  or  if  other  prudent  men  have,  and  consider 
all  safe,  the  law  does  not  require  every  possible  precaution  and 
exertion  from  a  guardian. 

An  unusual  rise  and  depression  of  property  occurred  over  most 
parts  of  this  state  from  1814  to  1820,  many  of  those  who  were 
considered,  and  who  were  of  eminent  skill *in  business,  of  great  in- 
dustry, and  as  honest  as  any  of  their  neighbors,  were  ruined.  It 
was  a  time  in  which  ruin  overwhelmed  many  of  all  classes,  and 
accident  had  no  more  to  do  in  the  eventual  wealth  or  poverty  of 
every  man,  than  knowledge  or  exertion.  The  infatuation,  as  it  is 
now  called,  pervaded  all  ranks.  A  few  from  extreme  caution,  a 
few  from  extreme  indolence,  and  perhaps  some  few  from  a  great 
superiority  of  mind,  or  experience,  kept  aloof.  It  is  not  right, 
however,  to  make  them  a  standard,  by  which  trustees  are  to  be  held 
liable  or  not ;  pre-eminent  knowledge  or  uncommon  foresight,  are 
not  required.  Ordinary  men  are  to  be  compared  with,  and  judged 
by  the  standard  of  ordinary  men.  Common  skill,  common  prudence, 
and  common  caution,  are  all  that  courts  have  required  or  ought  to 
require. 

There  is  no  proof  that  Weidman  was  a  general  speculator ;  he 
bought  a  place  called  the  Dry  Tavern  ;  no  one  has  said  he  bought 
too  high  or  lost  by  it.  If  he  had  become  extravagant  or  intempe- 
rate, or  lost  his  character  for  honesty,  or  if  an  opinion  that  he  was 
failing  had  generally  existed,  the  guardian  ought  to  have  sued  or 
got  security.  The  proof  fairly  viewed  is,  that  until  the  sale  of  his 
Garber  place,  had  shown  a  loss  of  above  $12,000,  he  was  considered 
safe  ;  arid  even  then  the  widow  did  not  sue,  nor  ask  security,  nor 
did  any  but  two  out  of  about  twenty  creditors,  all  of  whom,  we  must 
take  to  be  careful,  prudent  men.  Your  money  lenders  are  not  dull 
sighted,  nor  negligent  of  their  interest ;  and  no  court,  I  think,  has 
said  that  a  guardian  is  liable  unless  he  have  more  caution,  more 
knowledge,  or  more  foresight,  than  his  neighbors. 


Dec.  1829.]  OF  PENNSYLVANIA.  215 

[Konigrnacher  v.  Kimrael.] 

No  two  cases  of  this  kind  can  be  exactly  alike  in  all  their  circum- 
stances, and  therefore,  courts  can  only  give  general  rules.  Whether 
a  case  comes  within  a  general  rule,  is  a  matter  about  which  judges 
have  differed,  and  will  differ.  In  this  case,  a  majority  of  the  court 
are  of  opinion  that,  as  he  never  had  possession  of  the  money,  and 
found  it  in  hands  which  the  family  and  neighbors  thought  safe,  it 
was  not  gross  or  culpable  negligence  to  leave  it  there.  As  to  not 
getting  the  interest,  it  was  probably,  perhaps  certainly,  because  the 
ward  did  not  need  it.  The  fact  that  Weidman  was  deeply  indebted, 
though  believed  solvent,  is  answered  by  the  case  from  Atkyns,  in 
which  he  whose  drafts  the  receiver  took,  was  believed  good,  though 
he  became  bankrupt  in  a  week. 

As  to  not  suing  after  sale  of  the  land,  it  is  answered  by  Pirnm  v. 
Downing,  where  the  guardian  was  excused  for  not  suing  the  ad- 
ministrators as  soon  as  he  heard  they  were  indebted,  because  there 
was  no  evidence  he  would  then  have  got  anything.  In  this  case, 
we  see  no  evidence  that  a  suit  would  have  obtained  any  more  than 
is  now  got. 

The  decree  of  the  Circuit  Court  is  reversed  as  to  all  which  re- 
spects the  amount  lost  by  the  insolvency  of  Wiedman.  The  rest  of 
the  decree  is  affirmed. 

Decree  reversed. 

TOD,  J.,  dissented. 

Referred  to,  G  W.  189  ;  5  W.  &  S.  256  ;  5  Barr  94  ;  4  II.  37G  ;  7  Smith  96  ; 
14  Id.  334. 
Followed,  5  Whart.  476. 


216  SUPREME  COURT 


Slaymaker  ayainst  Wilson. 

IN    ERROR. 

A  witness  is  incompetent  to  prove  a  signature,  without  proof  of  having 
seen  the  person  write,  or  of  other  circumstances  to  show  knowledge  of  the 
handwriting  which  he  is  called  to  prove. 

It  is  not  enough,  without  such  preliminary  proof  that  the  witness  swears 
that  the  signature  offered  is  the  signature  of  the  person  whose  it  purports  to 
be. 

The  redemption  of  a  pawn  is  not  affected  by  the  Statute  of  Limitations, 
which  runs  only  from  the  conversion  of  the  thing  pawned.  But  a  simple 
contract  debt  is  not  protected  from  the  statute,  because  accompanied  with  a 
pledge  as  a  collateral  security. 

WRIT  of  error  to  the  District  Court  for  the  city  and  county  of 
Lancaster. 

In  that  court  it  was  an  action  of  debt  brought  on  the  22d  day  of 
January  1821,  by  the  defendant  in  error,  who  was  plaintiff  below, 
against  the  plaintiff  in  error,  who  was  defendant  below,  upon  the 
following  paper : 

"  Friend  John  Wilson,  I  was  at  your  house  this  day  to  see  if  you 
could  let  me  have  one  hundred  and  fifty-four  dollars,  I  owe  it  to 
Thomas  Coates,  he  will  call  to-morrow.  I  have  left  the  deed,  and 
if  you  pay  him  the  money,  get  him  to  sign  the  receipt  in  the  deed, 
this  from  yours, 

May  3d  1798.  JOHN  BOYD." 

The  defendant  pleaded  nil  debit,  non  assumpsit,  payment  with 
leave,  &c.,  and  the  Statute  of  Limitations ;  upon  which  the  plain- 
tiff took  issue. 

Upon  the  trial  of  the  cause,  the  plaintiff  gave  in  evidence  the 
order  of  the  3d  of  May  17^8,  on  which  he  founded  his  suit,  and 
offered  a  deed,  dated  the  29th  day  of  April  1794,  acknowledged  on 
the  31st  July  1797,  from  Thomas  Coates  to  John  Boyd,  fora  moiety 
of  a  tract  of  land  in  Leacock  township,  Lancaster  county,  together 
with  the  receipt  for  the  purchase-money  on  the  deed,  with  proof 
that  the  subscribing  witness  to  the  receipt,  William  Jones,  was  dead, 
and  the  deposition  of  his  daughter,  Elizabeth  McGraw,  in  which  she 
deposed,  "that  the  signature  of  William  Jones,  signed  as  a  witness, 
to  the  receipt  for  the  money,  on  a  deed  from  Thomas  Coates  to 
John  Boyd,  is  the  handwriting  of  William  Jones,  the  father  of  this 
deponent." 

To  this  testimony  so  offered,  the  defendant  objected,  but  the  court 
overruled  the  objection,  admitted  the  evidence,  and  sealed  a  bill  of 
exception. 

By  the  evidence,  it  appeared  that  the  parties  lived  no  great  dis- 
tance from  each  other,  in  the  county  of  Lancaster ;  that  the  plain- 
tiff brought  three  suits  against  the  defendant's  intestate,  John 
Boyd,  to  August  term  1810.  Two  on  bonds,  each  for  the  pay- 


Dec.  1829.]  OF  PENNSYLVANIA.  217 

[Slaymaker  v.  Wilson.] 

ment  of  $500 ;  another  on  a  single  bill,  for  the  payment  of  100J. ; 
and  another  on  a  book  account  for  money  lent,  amounting  to  $202, 
all  dated  after  1800.  On  the  first  two  of  these  cases,  no  judgment 
was  obtained,  but  the  money  had  been  paid,  and  on  the  'last,  judg- 
ment was  had  for  $424.60,  which  had  since  been  paid. 

The  court  below,  in  answer  to  points  put,  charged  the  jury  that 
"  the  order  in  this  case  contains  a  request  that  Wilson,  if  he  lent 
the  money,  should  procure  the  signature  of  Coates,  to  the  receipt 
on  the  deed.  It  appears  by  the  paper,  that  the  deed  was  left  for 
that  purpose.  If  there  was  no  fact  in  the  case  on  this  subject,  out 
of  this  paper,  it  would  be  the  duty  of  the  court  to  give  it  in  charge 
to  you,  what  the  legal  construction  of  the  paper  is.  But  this  deed, 
from  Coates  to  Boyd,  is  produced  on  the  trial  of  the  cause  by  the 
plaintiff.  If  the  jury  should  be  of  opinion,  that  the  deed  is  the 
one  spoken  of  in  the  order,  and  that  from  the  terms  of  the  order 
and  the  fact,  if  they  believe  it  to  be  so,  that  the  deed  has  ever  since 
been  in  the  possession  of  the  plaintiff,  and  the  deed  was  left  as  a 
pledge  to  secure  the  payment  of  the  money,  the  Act  of  Limitations 
does  not  apply  to  this  case;  but  if  the  jury  should  be  of  opinion 
that  the  deed  in  evidence  is  not  the  deed  from  Coates,  mentioned 
in  the  order,  or  that  it  was  not  pledged  as  a  security  for  the  pay- 
ment of  the  money,  the  Act  of  Limitations  will  bar  the  plaintiff, 
and  he  cannot  recover." 

The  court  also  charged  the  jury  that  if  the  delay  of  the  plaintiff, 
in  bringing  suit,  had  not  been  satisfactorily  accounted  for,  it  was 
the  duty  of  the  jury  to  infer  from  that,  and  other  circumstances  in 
the  case,  the  payment  of  the  money  claimed. 

Error  was  here  assigned  in  admitting  the  deposition  of  Elizabeth 
McGraw,  and  the  charge  of  the  court. 

Evans,  for  the  plaintiff  in  error,  argued,  that  the  deposition  was 
improperly  received.  That  no  person  is  a  competent  witness  to 
prove  a  signature,  or  handwriting,  but  one  who  has  seen  the  person 
write,  whose  hand  he  is  called  on  to  prove,  and  before  such  witness 
is  permitted  to  give  evidence,  he  must  disclose,  as  a  preliminary, 
his  means  of  knowing  the  handwriting.  Here  the  witness  was 
received  to  testify,  that  the  signature  was  her  father's  without  any 
evidence  that  she  had  any  knowledge  of  his  handwriting. 

2.  The  Statute  of  Limitations  is  a  bar.  The  attempt  is  to  avoid 
the  statute  by  the  allegation  that  the  money  was  loaned  on  a  j*x\vn 
or  pledge.  The  order  contains  no  evidence  that  the  deed  was 
pawned,  it  is  a  simple  request  to  loan  money  ;  and  the  possession 
of  the  deed  does  not  of  itself  prove  a  pawn.  But  if  the  plaintiff 
allege  a  pawn,  he  could  not  recover,  for  he  must  return,  or  offer  to 
return  a  pawn,  before  he  can  bring  suit  to  recover  money,  for 
which  it  is  pledged:  1  Bacon  Ab.  370;  Garlick  v.  James,  1'2 
Johns.  R.  140. 


218  SUPREME  COURT  [Lancaster 

V 

[Slaymaker  v,  Wilson.] 

But  the  issue  was  joined,  as  to  the  Statute  of  Limitations,  on  the 
replication  that  the  defendant  did  assume  within  six  years.  There 
was  no  proof  of  such  assumption,  and  it  is  not  competent,  under 
this  issue,  to  rely  on  the  alleged  pawn  to  avoid  the  statute.  To 
give  that  effect,  if  entitled  to  any,  it  should  have  been  specially 
pleaded:  Witherup  v.  Hill,  9  S.  &  R.  11 ;  Wister  v.  Gray,  5  Binn. 
573 ;  Eckert  v.  Wilson,  12  S.  &  R.  393 ;  Bailey  v.  Bailey,  14 
Id.  195. 

Hopkins,  for  defendant  in  error,  as  to  the  bill  of  exception, 
argued,  that  where  a  witness  called  to  prove  handwriting  swears  to 
belief,  he  must  state  his  grounds  of  belief,  and  knowledge ;  but 
where  the  witness,  as  here,  swears  to  the  actual  fact,  that  the 
handwriting  is  the  writing  of  an  individual,  it  is  better  evidence, 
than  evidence  of  belief,  founded  on  antecedent  means  of  knowledge 
of  handwriting. 

2.  The  question  pawn,  being  one  of  fact,  was  properly  left  to 
the  jury. 

The  Statute  of  Limitations  is  inapplicable  to  the  case  of  a  pawn. 
The  deed  could  not  have  been  recovered  without  payment  of  the 
money  for  which  it  was  pledged.  And  as  the  deed  could  not  be 
recovered  without  payment  of  the  money,  so  as  long  as  the  deed  is 
retained,  the  money  can  be  recovered  ;  and  no  period  will  destroy 
this  mutual  obligation  in  the  case  of  a  pawn. 

The  pawnor  has  his  lifetime  to  redeem,  and  if  not  hastened  by  a 
request,  his  executor  or  administrator  may  redeem  :  Cortelyou  v. 
Antill,  2  Caines  C.,  in  error  199.  In  reason,  the  rule  should  be 
reciprocal,  the  pawnor  having  his  lifetime  to  redeem,  the  pawnee 
should  not  be  barred  by  the  statute  for  the  money  advanced  on 
the  pawn.  No  power  short  of  redemption,  or  a  tender,  can  bring 
time  to  operate:  Kemp  v.  Westbrook,  1  Vesey  278;  1  Bacon  Ab. 
372  a. 

Trover  for  the  pawn  will  not  lie  without  payment,  or  tender. 
No  precise  words  are  necessary  to  create  a  pawn :  1  Bacon  Ab. 
370. 

The  replication  to  the  plea  of  the  statute  is  not  before  the  court. 
The  court  below  did  not  refer  to  the  pleadings.  But  on  this  repli- 
cation it  is  full  evidence  to  prove,  that  the  defendant  assented  to 
the  continuance  of  the  pawn  in  the  possession  of  the  pawnee. 

Besides,  the  plea  of  the  statute  was  a  nugatory  plea.  The 
plaintiff  must  show  a  right  to  recover,  independent  of  the  statute, 
and  the  issue  upon  it  cannot  divert  the  investigation  from  the 
merits.  The  objection  now  urged,  is  to  the  pleadings,  and  should 
have  been  made  on  the  trial:  Thompson  v.  Cross,  Iti  S.  &  R.  350. 

Norris,  for  the  plaintiff  in  error,  in  reply. — This  suit  is  for  money 
loaned ;  simply  that  is  the  cause  of  action  to  which  the  plaintiff  is 


Dec.  1829.]  OF  PENNSYLVANIA.  219 

[Slaymaker  v.  Wilson.] 

confined.  Yet  notwithstanding  he  seeks  to  recover  a  debt  upon  a 
pawn.  He  must  be  confined  to  the  issue  on  the  Statute  of  Limit- 
ations, and  cannot  travel  out  of  it.  If  he  relied  on  special  matter 
in  avoidance  of  the  statute,  he  must  set  it  out  in  his  replication  : 
Witherup  v.  Hill,  9  S.  &  R.  11.  There  is  no  evidence  of  a  pawn, 
nor  is  it  like  an  indefinite  deposite.  The  order  itself  shows  it  was 
left  to  get  the  signature  of  Mr.  Coates  to  the  receipt.  Independent 
of  the  statute,  the  lapse  of  more  than  twenty  years  created  an  insu- 
perable presumption  of  payment. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  G.  J. — Without  proof  of  having  seen  her  father  write, 
or  other  circumstances  to  show  her  knowledge,  Mrs.  McGraw  was 
incompetent  to  prove  his  signature,  and  her  deposition  ought  to 
have  been  rejected. 

The  redemption  of  a  pawn  is  not  affected  by  the  Statute  of  Limit- 
ations, which  runs  only  from  the  conversion  of  the  thing  pawned ; 
and  trover  may,  consequently,  be  brought  within  six  years  from 
that  time.  The  present,  however,  is  not  an  action  by  the  owner  in 
affirmance  of  the  contract  of  bailment,  but  by  the  pawnee  to  recover 
a  simple  contract  debt,  which  is  certainly  not  the  more  protected 
by  the  statute  because  accompanied  with  a  pledge,  as  a  collateral 
security  ;  nor  is  it,  on  that  account,  the  less  subject  to  the  mischief 
against  which  the  statute  was  intended  to  guard.  Had  the  matter 
been  stirred  before  those  who  knew  the  circumstances  had  passed 
away,  it  is  highly  probable  that  the  transaction  would  have  been 
explained  so  as  to  show  that  nothing  is  due.  Certainly  the  delay 
of  twenty-three  years,  unaccounted  for,  raises  an  omnipotent  pre- 
sumption. But  was  the  deed  deposited,  in  fact,  as  a  security  ? 
Nothing  in  the  order  on  which  the  money  was  paid  indicates  such 
a  conclusion ;  and  it  seems  to  me  the  court  ought  so  to  have 
instructed  the  jury.  But  it  is  said  that  the  construction  being 
affected  by  a  circumstance  dcliors  the  order,  the  production  of  the 
deed  was  for  the  jury.  I  am  at  a  loss  to  see  what  operation  that 
could  have.  The  deed  was  in  the  plaintiff's  possession  for  some 
purpose,  but  whether  as  a  pledge,  or  for  the  purpose  indicated  in 
the  order,  could  not  appear  by  the  naked  production  of  it.  I  pre- 
sume the  argument  is,  that  the  owner  would  have  demanded  it  in  a 
convenient  time,  had  he  not  been  conscious  that  it  was  held  as  a 
security.  This  is  the  first  instance  in  which  delay  has  been  set  up 
to  strengthen  a  plaintiff's  case.  On  the  other  hand,  there  is  an 
infinitely  stronger  presumption  that  the  plaintiff  would  have  ex- 
acted the  interest,  if  not  the  principal,  if  anything  were  due.  But 
in  any  event,  the  Statute  of  Limitations  furnishes  a  bar  to  the 
action.  Judgment  reversed. 

Referred  to,  1  11.  6^7. 


220  SUPREME  COURT  [Lancaster 


Keller  against  Leib. 


Trustee  for  the  payment  of  debts,  paid  a  judgment  against  the  debtor, 
and  took  an  assignment  in  writing  on  the  back  of  the  bond  on  which  it  was 
entered,  expressed  to  be  for  value  received:  Held,  that  it  was  competent  to 
prove  by  parol  that  the  assignment  had  been  made  to  enable  the  trustee  to 
enter  satisfaction  on  it,  and  not  to  preserve  it  is  a  subsisting  debt. 

If  evidence  must  be  immaterial  when  given,  the  court  ought  to  reject  it. 

If  a  trustee  pay  a  judgment  against  the  debtor  out  of  the  trust  fund,  it  is  as 
much  satisfied  as  if  the  debtor  had  paid  it,  and  there  is  no  legal  or  equitable 
reason  for  keeping  it  in  force. 

The  trustee  cannot,  by  taking  an  assignment  of  it,  when  it  is  paid  make  it 
available  against  the  lands  of  the  debtor,  conveyed  after  it  was  entered,  either 
for  a  good  or  valuable  consideration,  nor  can  it  be  mad«  to  cover  any  other 
debt  or  demand. 

Queer*.  Whether  such  trustee  can  proceed  on  a  judgment  against  the 
debtor  (purchsed  with  his  own  funds)  by  execution. 

IN  error  to  the  District  Court  for  the  city  and  county  of  Lan- 
caster. 

This  was  a  scire  facias  post  annum  et  diem,  brought  by  the 
plaintiff  in  error,  who  was  also  plaintiff  below,  to  revive  a  judgment, 
which  had  been  entered  in  the  Common  Pleas,  at  the  suit  of  Jfthn 
Gest,  &c.,  against  Jacob  Leib.  The  original  judgment  was  entered 
on  the  10th  April  1815,  and  the  judgment  which  was  soughf  to  be 
revived  by  this  scirc  facias,  was  entered  to  revive  that  judgment  on 
the  22il  November  1819. 

Jacob  Leib,  on  the  2d  May  1818,  conveyed  by  deed  to  Christian 
Stehman,  the  terre-tenant,  and  his  son-in-law,  one  hundred  and 
twenty-six  acres  of  land,  in  consideration  of  $12,014,  and  natural 
love  and  affection  ;  and  on  the  27th  October  1819  executed  to  John 
Keller,  John  Leib  and  John  Shober  a  deed  of  trust,  for  the  use  of 
his  creditors,  he  being  at  that  time  largely  indebted  ;  but  at  the 
time  of  the  deed  to  Stehman,  the  judgment  in  favor  of  (Jest  and 
one  other  only  existed  against  him.  On  the  '2d  of  May  18:21,  John 
Keller,  one  of  the  trustees,  paid  to  Gest  the  amount  of  this  judg- 
ment out  of  the  trust  fund,  and  took  an  assignment  of  the  bond,  on 
which  the  original  judgment  was  entered  to  himself,  and  it  was 
expressed  in  the  assignment  to  be  for  value  received.  On  the  2<>th 
September  1823,  the  trustees  settled  an  account,  in  which  they 
took  credit  for  the  amount  of  the  debt,  interest  and  costs,  exceed- 
ing 3^000,  paid  to  Gest  on  this  judgment ;  stating,  however,  on  the 
face  of  the  account  that  the  judgment  was  outstanding. 

The  terre-tenant,  who  took  defence,  offered  to  prove  by  the  de- 
position of  Gest  that  when  the  judgment  was  paid  to  him,  Keller 
requested  him  to  assign  it  to  him,  that  he  told  Keller  he  had  no  ob- 
jections, that  he  could  enter  satisfaction  at  Lancaster,  as  he  was 


Dec.  1820.]  OF  PENNSYLVANIA.  221 

[Keller  v.  Leib.] 

frequently  there,  and  it  was  too  far  for  the  deponent  to  go  for  that 
purpose ;  that  this  would  clear  the  estate,  and  the  bond  would  be 
a  voucher  in  his  hands  against  the  estate.  That  he  made  the  as- 
signment to  Keller  solely  for  the  purpose  and  the  reasons  stated. 
This  evidence  was  objected  to  by  the  plaintiff',  but  received  by  the 
court,  and  constituted  one  of  the  bills  of  exception  assigned  for 
error  here. 

After  this  evidence  and  proof  of  the  payment  of  the  judgment 
to  Gest,  the  assignment  to  Keller,  and  the  account  of  the  trustees 
had  been  given,  the  plaintiff'  offered  to  prove  that  at  the  time  of  the 
deed  to  Stehrnan,  Leib  was  largely  indebted ;  that  fifty  acres,  part 
of  the  land  conveyed,  was  conveyed  in  consideration  of  natural  love 
and  affection.  This  evidence  was  objected  to  by  the  defendant,  and 
overruled  by  the  court,  and  formed  another  bill  of  exception,  as- 
signed for  error  in  this  court. 

The  court  charged  the  jury  that  if  they  believed  that  the  judg- 
ment was  paid  to  Gest,  out  of  the  trust  fund,  in  satisfaction  of  it, 
and  that  Keller  took  an  assignment  of  it  merely  to  enter  satisfaction, 
the  defendant  was  entitled  to  their  verdict.  This  and  the  answers 
of  the  court  to  the  points  put,  which  it  is  not  necessary  to  state 
specifically,  was  also  assigned  for  error. 

Jenkins  and  Hopkins,  for  the  plaintiff  in  error,  argued  that  the 
testimony  of  Gest  went  to  contradict  and  destroy  the  assignment  on 
the  bond,  which  was  positive  in  its  terms,  and  contained  a  stipula- 
tion, that  the  assignor  should  not  be  liable,  and  that  no  case  had 
gone  the  length  of  admitting  such  evidence. 

That  the  evidence  as  to  the  consideration  of  the  land  conveyed, 
connected  with  the  indebtedness  of  the  grantor,  should  have  been 
received.  It  would  have  gone  to  avoid  the  deed  set  up  by  the 
terre-tenant  as  a  defence:  Ilayden  v.  Mcntzer,  10  S.  &  II.  329. 

If  the  trustee  paid  the  money  and  took  the  assignment  for  a  pur- 
pose beneficial  to  the  trust,  he  had  a  right  to  do  so.  Here  Gest 
had  two  funds,  and  the  other  creditors  but  one,  and  in  equity  he 
would  be  constrained  to  seek  satisfaction  from  that  fund  to  which 
they  could  not  resort.  The  assignment  taken  and  this  scire  facias 
would,  if  the  plaintiff  prevailed,  accomplish  this  equitable  applica- 
tion of  the  funds :  Dorr  v.  Shaw,  4  Johns.  Ch.  17. 

The  court  declined  hearing  Rogers,  Norris  and  Frazicr,  who 
were  counsel  for  the  defendant  in  error. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J.  (who  recapitulated  the  facts  of  the  case). — As  to  the 
first  bill  we  see  no  difficulty.  In  New  York,  where  the  courts  of 
law  arc  strict  in  rejecting  parol  evidence  where  there  is  written ; 
yet  there  evidence  is  constantly  admitted  to  explain  a  receipt  for 


222  SUPREME  COURT  [Lancaster 

[Keller  c.  Leib.J 

money,  and  they  have  permitted  a  party  to  show  that  although  a 
receipt  was  given  in  full  for  goods  sold,  yet  in  fact  there  was  no 
money  paid,  but  a  note  of  a  third  person  given,  which  was  to  be  in 
full  if  paid.  Our  courts  have  done  the  same  thing :  Leas  v.  James, 
10  S.  &  R.  314  In  cases  of  trust  the  courts  will  always  permit  the 
conduct  of  the  trustee  to  be  examined,  and  the  real  facts  to  be 
proved.  The  setrt'^ment  by  the  three  trustees,  of  whom  Keller  was 
one,  showed  a  payment  of  this  judgment  by  them  all ;  the  assign- 
ment appeared  as  if  it  had  been  by  one.  There  are  few  cases  in 
which  the  real  state  •$  the  case  cannot,  by  pleas  or  by  proof,  be 
brought  before  a  court  of  law  or  equity ;  our  courts  exercise  the 
powers  of  both. 

As  to  the  other  exceptions — if  evidence  must  be  immaterial  when 
given,  the  court  ought  to  reject  it.  Now,  if  this  judgment  was  sat- 
isfied, in  fact  and  in  law,  the  plaintiff,  J.  Keller,  cannot  recover 
any  thing  on  it ;  if  it  is  not  satisfied,  the  lands  of  Stehman  are 
bound  by  it,  whether  the  conveyance  to  him  by  Jacob  Leib,  was 
fair  or  fraudulent ;  for  a  good  and  valuable  consideration,  or  for  no 
consideration.  The  counsel,  aware  of  this,  have  discussed  the  mat- 
ter on  that  point ;  and  contended  it,  as  if  the  assignment  had  been 
made  to  the  three  trustees,  and  the  suit  was  for  the  use  of  creditors, 
and  not  of  Keller  alone.  It  is  apparent,  however,  if  this  judgment 
is  revived,  so  as  to  bind  the  land  conveyed  to  Stehman,  that  they 
can  and  will  sell  not  only  the  fifty  acres  said  to  be  a  gift,  but  the 
whole,  for  which  he  paid  $12.000  cash  ;  and  the  judgment  would 
be  conclusive  against  Stehman,  as  much  for  the  one  as  for  the  other. 
There  are  creditors  unpaid,  and  if  there  were  any  thing  unfair  as 
to  them,  in  the  conveyance  by  Leib  to  Stehman  ;  if  the  fifty  acres 
were  a  gift  by  a  man  deeply  indebted,  nay  totally  insolvent,  it  can 
be  reached  in  another  way. 

But  it  is  said,  that  where  one  creditor  has  two  funds  from  which 
he  can  levy  his  debt,  and  another  but  one,  chancery  will  compel 
the  first  to  levy  so  as  to  leave  property  for  the  other.  This  is  true 
sometimes ;  where  the  creditors  arid  the  debtor  alone  are  interest- 
ed, it  is  generally  the  case ;  but  where  another  person  is  interested 
and  may  be  affected,  it  is  not  always  true,  and  if  that  other  person 
be  an  innocent  purchaser  for  a  valuable  consideration,  it  will  not 
be  easy  to  find  a  case  in  which  chancery  has  interfered  to  affect 
him.  (See  1  Johns.  Ch.  226,  and,  I  believe,  every  other  book 
and  case  on  the  subject.)  I  have  said  if  the  conveyance  complain- 
ed of  be  fraudulent,  it  can  be  reached  dirccfly  by  those  interested  ; 
and  we  are  of  opinion  that  the  attempt,  in  the  present  case,  is  not 
likely  to  eventuate  in  doing  justice.  If  the  judgment  of  Gest  was 
paid  off  by  the  trustees,  out  of  the  trust  fund,  it  is  as  much  satisfied 
as  if  it  had  been  paid  off  by  J.  Leib.  They  represent  him,  and  can 
no  more  pay  a  judgment,  and  yet  keep  it  in  force  than  he  could.  If 
he  had  paid  this  judgment  as  surety,  or  if  they  had  paid  it  for  him. 


DM.  1829.]  OF  PENNSYLVANIA.  223 

[  Keller  ».  Leib.] 

as  surety  or  endorser,  it  might  be  used  to  reach  the  principal  debtor; 
but  when  the  real  debtor  pays  a  judgment  against  himself,  or  his 
trustees  pay  it  with  the  trust  fund,  I  can  see  no  legal  reason  for 
keeping  it  in  force,  nor  any  equitable  one. 

It  is,  says  Chancellor  Kent,  in  4  Johns.  Ch.  247,  a  sound  and 
settled  rule,  that  the  penalty  of  a  bond  cannot  be  made  to  cover 
any  other  debt  or  demand  than  that  mentioned  in  the  condition 
(arid  he  cites  2  Caines  286),  and  proceeds,  there  could  riot  be  a 
more  dangerous,  and  there  certainly  is  not  a  more  inadmissible  pre- 
tension, than  that  the  parties  to  a  judgment  may  keep  it  on  foot, 
after  the  original  debt  has  been  paid,  to  meet  and  cover  new  and 
distinct  engagements  between  them.  And  he  adds,  that  although 
in  that  case,  the  judgment  had  been  revived,  under  the  pretence 
that  it  was  unsatisfied,  at  least,  in  part,  and  executions  had  issued 
on  it,  by  the  assignee,  to  recover  the  alleged  balance,  yet  the  as- 
signee, if  he  took  it,  took  it  at  his  peril.  And  that  whatever  might 
be  the  case  as  to  strangers  who  purchased  property  under  it,  yet  the 
assignee  of  it  purchases  it  at  his  peril,  and  he  was  decreed  to  be  a 
trustee,  and  compelled  to  release.  Another  part  of  this  case  settles 
the  question  as  to  the  admissibility  of  the  evidence  in  the  first  bill. 

A  question  almost  the  same  as  that  before  us,  was  decided  by  the 
Supreme  Court  of  this  state,  and  is  reported  in  Kuhn  v.  North,  10 
S.  &  R.  399,  in  it,  also,  the  question  in  the  first  bill  seems  to  be 
settled.  There,  one  of  the  assignees  of  an  insolvent  paid  oft'a  judg- 
ment, and  charged  the  estate  of  the  insolvent  with  the  payment, 
and  the  sheriff's  officer  endorsed  satisfaction  on  the  writ.  On  the 
next  day,  the  assignee  procured  the  judgment  to  be  assigned  to  him  ; 
prevailed  on  the  officer  to  erase  the  satisfaction  endorsed  on  the 
writ,  and  gave  it  to  another  deputy  of  the  sheriff  to  execute.  The 
court  decided,  that  an  assignee  who  pays  off  a  debt  against  the 
insolvent  with  his  own  money,  may  take  an  assignment  of  the  judg- 
ment and  proceed  by  execution  ;  but  if  he  pays  off  the  debt  with 
the  trust  funds,  the  judgment  is  satisfied,  and  the  officer  who  ex- 
ecutes process  is  a  trespasser. 

The  point  was  not  made,  and  therefore  I  do  not  consider  this  as  a 
deliberate  opinion,  whether  such  assignee  can  proceed  on  a  judgment 
purchased  with  his  own  funds,  by  execution.  I  agree  he  may  retain 
for  his  judgment  in  proportion  with  others,  but  1  doubt  whether  he 
can  proceed  by  execution,  and  sue  and  buy  in,  the  trust  property 
for  himself — if  so,  a  trustee  by  purchasing  a  judgment,  may  make- 
strange  work  of  it. 

The  District  Court  then,  were  right  in  all  the  points,  and  the 
judgment  is  affirmed.  Judgment  affirmed. 

Referred  to.  10  II.  324. 


224  SUPREME  COURT  [Lancaster 


Demi  against  Bossier. 

IN  ERROR. 

Where  a  lease  is  made  for  the  term  of  a  year,  and  the  tenant  sows  the  land 
with  spring  grain  before  his  term  expires,  he  has  no  right  to  the  crop  of 
spring  grain  cut  after  the  term  is  out ;  and  this  whether  the  lease  be  for 
money,  rent,  or  on  the  shares. 

The  custom  in  Pennsylvania,  as  to  the  way-going  crop,  is  confined  to  fall 
grain,  sowed  in  the  autumn,  before  the  expiration  of  the  lease,  and  cut  in 
the  summer  after  it  determines. 

IN  error  to  the  District  Court  for  the  city  and  county  of  Lan- 
caster. 

This  was  an  action  of  trover  and  conversion,  by  which  the  plain- 
tiff sought  to  obtain  the  value  of  oats,  in  the  straw,  which  grew  on 
twenty-four  acres  of  land,  alleged  to  be  one  thousand  six  hundred 
dozen  of  sheaves,  of  the  value  of  $300,  and  which  came  into  the 
defendant's  possession  on  the  12th  ot  July  1825, 

On  the  1st  December  1823,  Christian  Bossier,  leased  the  land  on 
which  these  oats  grew  to  Frederick  Demi,  the  plaintiff,  for  the  term 
of  one  year,  from  the  1st  day  of  April  1824,  to  the  1st  day  of  April 
1825.  The  lease  contained  a  covenant  that  "Demi,"  should  "cul- 
tivate the  said  plantation  by  the  shares  ;"  that  each  of  the  said  par- 
ties "should  have  the  one  equal  half  part  of  all  the  wheat,  rye, 
oats,  Indian  corn,  hay  and  pasture;"  the  wheat,  rye  and  oats,  to  be 
delivered  in  the  bushel.  The  landlord,  on  the  28th  December  1824, 
served  Demi  with  notice  to  leave  the  premises,  and  by  a  proceed- 
ing under  the  Landlord  and  Tenant  Act,  commencing  on  the  4th  of 
April  1825,  compelled  him  to  quit.  The  oats  in  question  were 
sown  in  the  month  of  March  before  the  expiration  of  the  lease.' 
The  charge  of  the  court,  being  with  the  defendant,  a  verdict  was 
found  for  him ;  and  the  plaintiff  brought  this  writ  of  error,  and 
assigned  for  error  this  opinion  of  the  court. 

Porter,  for  the  plaintiff  in  error. — The  question  is,  whether  a 
tenant  who  has  put  out  a  spring  crop,  in  proper  season,  before  the 
expiration  of  his  lease,  has  a  right  to  enter,  after  his  term  is  ended, 
and  cut  that  crop.  By  the  terms  of  the  lease,  the  tenant  was  to 
cultivate  the  land  "by  the  shares,"  and  divide  the  "oats,"  as  well 
as  other  grain,  in  the  bushel.  The  lease  too,  is  without  any  restric- 
tion as  to  the  mode  of  cultivation,  and  contains  no  covenant,  that 
he  should  quit  at  the  end  of  the  term.  The  right  claimed,  is  then 
consistent  with  the  covenants  in  the  lease,  giving  to  the  tenant  a 
compensation  for  his  labor,  and  the  landlord  the  benefit  of  the 
covenant,  to  deliver  the  one-half  of  the  grain  cut.  The  case  of 
Stultz  v.  Dickey,  5  Binn.  285,  establishing  the  right  of  the  tenant 
to  the  way-going  crop,  was  a  case  in  which  fall  grain  was  claimed ; 


Dec.  1829.]  OF  PENNSYLVANIA.  225 

[Demi  v.  Bossier.] 

but  the  reasoning  in  that  case  is  applicable  to  the  present ;  that 
too,  was  a  case  of  a  money  rent,  this  is  a  rent  by  the  shares.  He 
referred  also  to  Carson  v.  Blazer,  2  Binn.  476,  487  ;  Briggs  v. 
Brown,  2  S.  &  R.  14. 

Henry,  contra. — The  tenant  knew  that  his  term  was  to  expire 
on  the  1st  day  of  April  1825,  and  had  full  notice  to  quit,  before  he 
sowed  the  grain  in  question,  and  he  sowed  it  a  few  days  before  the 
end  of  his  term. 

This  takes  from  his  case  all  equity.  The  way-going  crop,  the 
right  to  which  exists  in  Pennsylvania,  means  the  fall  crop.  This 
right  has  its  foundation  in  particular  custom,  and  does  not  exist  at 
common  law :  Gordon  v.  Little,  8  IS.  &  R.  533,  559.  The  parti- 
cular custom  is  supposed  to  enter  into  the  contract  between  the 
parties,  and  if  the  plaintiff'  wished  to  extend  it  to  the  spring  crop, 
it  was  incumbent  on  him  to  prove  a  custom,  to  sustain  him.  A 
custom  in  derogation  of  the  common  law,  must  be  construed  strictly, 
and  will  not  be  extended  without  evidence :  1  Black.  Com.  78. 

Nurris,  on  the  same  side. — Before  the  case  of  Stultz  v.  Dickey, 
5  Binn.  285,  decided  at  Lancaster,  the  custom,  as  to  the  way- 
going crop,  was  not  established  in  Pennsylvania,  and  is  inconsis- 
tent with  the  language  of  the  lease  ;  which  by  its  terms  is  to  expire 
at  the  end  of  the  year.  But  this  custom  does  not  extend  to  give 
the  tenant  two  spring  crops,  and  one  fall  crop.  The  plaintiff'  was 
permitted  to  give  evidence  to  establish  such  a  custom,  but  in  this 
he  failed.  Here  the  lease,  by  its  terms,  ends  with  the  year,  and 
cannot  be  carried  beyond  it,  but  by  usage,  and  this  is  a  matter  in 
pals,  and  lies  in  proof.  But  the  right  contended  for,  is  in  the  highest 
degree  unreasonable ;  it  would  permit  the  tenant  by  sowing  a 
spring  crop,  under  a  lease  for  one  year,  to  occupy  the  premises 
rented  for  two  years  ;  and  would  be  against  the  course  of  good 
husbandry,  as  it  is  in  violation  of  the  contract  of  the  parties. 

Hopkins,  in  reply. — We  do  not  rely  on  usage,  we  stand  on  our 
contract,  and  the  law  of  the  land.  By  the  terms  of  the  lease,  the 
tenant  had  the  exclusive  right  to  the  land  for  one  year,  with  no 
other  restriction,  but  that  he  should  not  under-let ;  he  was  to  have 
the  half  of  what  was  sown  during  the  term,  and  the  landlord  the 
other  half.  There  is  no  restriction  in  the  lease  as  to  the  time  he 
should  sow.  If  to  sow  grain  in  the  spring,  as  was  done  in  this  case, 
be  contrary  to  good  husbandry,  the  landlord  should  have  guarded 
against  it  by  an  appropriate  covenant.  As  there  is  no  such  restric- 
tion, it  is  the  defendant  who  must  resort  to  the  proof  of  usage,  to 
effect  a  construction  of  the  lease,  which  its  language  does  not 
import,  and  that  too,  for  the  unjust  purpose  of  depriving  the  tenant 
of  a  compensation  for  his  labor. 

1  P.  &  \V.— 15 


226  SUPREME  COURT 

[Demi  v.  Bossier.] 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — By  the  common  law,  a  tenant  after  the  expiration 
of  his  lease,  and  removal  from  the  tenement,  had  no  right  to  return ; 
and  hence  the  crops  growing  and  ungathered  were  lost  to  him. 
The  law  in  this  state  has  varied  from  that,  as  to  what  has  been 
called  the  way-going  crop,  which,  heretofore,  has  been  confined  to 
grain  sown  in  the  autumn,  to  be  reaped  the  next  harvest ;  and  no 
difference  has  yet  been  established  between  a  tenant  who  pays  a 
rent  in  money,  and  one  who  gives,  as  rent  to  his  landlord,  a  share 
of  the  produce  of  the  farm.  The  usage  and  general  understanding 
of  the  country  form  a  part  of  general  agreements,  unless  otherwise 
specified :  Stultz  v.  Dickey,  5  Binn.  285.  If  a  tenant  rents  a  farm 
for  one  year,  it  is  understood  he  is  to  take  one  crop  of  each  kind 
of  grain  cultivated,  and  that  he  is  to  mow  as  many  crops  of  grass 
as  the  meadows  will  produce.  If  a  tenant  on  a  moneyed  rent,  can 
sow  with  oats,  flax  or  other  grain  in  March,  before  his  lease  expires, 
which  is  always  about  the  first  of  April,  he  in  fact  gets  the  benefit 
of  the  farm  for  two  years,  although  he  pays  the  rent  of  but  one. 
So,  if  he  takes  the  farm  on  the  shares,  and  after  raising  the  summer 
crop  one  year,  sows  in  March  all  the  grounds  with  oats,  no  tenant 
can  go  on  it  the  next  year,  or  he  will  have  no  land  to  cultivate  for 
spring  crops,  and  can  put  in  fall  crops,  but  on  oats  stubble,  which 
yields  badly.  The  law  has  been  well  and  justly  settled,  and  favor- 
ably to  tenants.  The  present  attempt  is  unreasonable,  and  preg- 
nant with  injustice  to  one  party,  and  would  eventuate  in  injury  to 
tenants  as  a  class ;  for  the  tenant  who  rents  a  farm  for  the  ensuing 
year,  will  not  know  whether  he  can  put  in  a  spring  crop  until  he 
knows  whether  the  month  of  March  will  be  clement  or  inclement, 
or  whether  the  previous  tenant  was  regardful  of  the  rights  and 
interests  of  others,  and  the  general  laws  and  usages  of  the  country. 
The  conduct  of  Demi,  in  this  particular  case,  was  unreasonable 
and  unjust,  and  to  sanction  it  would  only  introduce  a  new  clause 
into  leases.  It  is  contrary  to  the  common  law,  to  the  law  as  settled 
in  this  state,  and  is  not  pretended  to  be  sanctioned  by  any  usage. 

Judgment  affirmed. 

Referred  to,  2  P.  &  W.  66. 


Dec.  1829.]  OF  PENNSYLVANIA.  227 

Royer  et  al.  against  Tate  et  al. 

A  decree  which  does  not  dispose  of  the  whole  fund  for  distribution,  under 
the  Act  of  Assembly  "relative  to  the  distribution  of  money  arising  from 
sheriffs'  and  coroners'  sales,"  is  not  ti  final  decree,  and  an  apjreal  taken  from 
such  decree  will  be  quashed. 

Tins  was  an  appeal  taken  by  Abraham  Royer,  John  Stultzfua  and 
Peter  Eckcrt,  from  the  decree  of  the  Court  of  Common  Pleas  of 
Lancaster  county,  in  the  matter  of  the  distribution  of  the  money 
raised  by  the  sale  of  the  real  estate  of  James  Hamilton,  deceased, 
by  the  sheriff. 

On  the  2d  of  September  1825,  the  sheriff  was  ruled  to  pay  the 
money  into  court,  and  notice  to  J.  Hopkins,  Esq.,  at  bar,  was  noted 
on  the  record.  On  the  Oth  September  1825  he  paid  $7735.25,  the 
net  proceeds,  into  court.  On  the  30th  September  1825  a  rule  was 
taken  to  show  cause  why  the  judgment  of  Susannah  Ellrnaker 
should  not  be  paid  out  of  these  proceeds,  and  on  the  20th  December 
1825,  a  similar  rule  was  taken  in  behalf  of  Hamilton,  Potter,  Ram- 
sey and  Clark,  other  judgment-creditors  of  J.  Hamilton,  deceased. 
On  the  13th  of  March  1827,  these  rules  were  argued;  and  on  the 
1st  May  1827,  the  court  decreed  that  "the  judgments  obtained  by 
Tate  and  wife,  No.  7,  to  April  term  1817  ;  Joshua  Potter  to  <April 
term  1821  ;  William  Ramsey  to  the  same  term ;  Grayson,  as- 
signee, &c.,  to  January  term  1818,  and  Susannah  Ellmaker  to 
August  Term  1824,"  are  entitled  to  be  paid  as  judgments  on  spe- 
cialties out  of  the  proceeds  of  the  sale  of  the  real  estate  of  James 
Hamilton.  Those  obtained  by  Tate  and  wife,  No.  <S,  April  term 
1817  ;  Jane  M.  Tate,  to  August  term  1H24;  by  Clark  and  wife, 
to  April  term  1823,  "are  entitled  to  be  paid  as  judgments  on  civil 
contract  debts  only."  The  court  added,  "  We  cannot  recognise 
John  Stultzfus,  Peter  Eckert  and  Abraham  Royer  as  specialty  cre- 
ditors. There  was  no  debt  due  to  them  at  the  time  of  .1.  Hamilton's 
death.  Their  remedy  is  confined  to  the  covenant  of  warrantee  in 
the  deed,  and  the  claim  must  be  made  out  judicially  before  it  can 
be  enforced." 

From  this  decree  an  appeal  to  the  Supreme  Court  was  taken  by 
the  present  appellants,  and  on  the  Oth  of  June  1827,  this  appeal 
was  dismissed.  On  the  20th  June  1827,  Hopkins  moved  the  Court 
of  Common  Pleas,  on  the  petition  of  the  appellants,  "  That  the 
court  proceed  to  make  a  final  distribution  of  .the  proceeds  of  the 
real  estate  of  the  said  James  Hamilton,  agreeably  to  the  14th  sec- 
tion of  the  Act  of  the  10th  April  1704,  and  that  if  it  should  appear 
that  any  incertitude  as  to  the  question  of  any  other  claims  exists, 
that  the  court  direct  issues  to  ascertain  them."  On  the  30th  June 
1827  that  court  made  the  following  decree  : 

"The  court  having  decided  on  the  1st  May  1827.  that  the  judg- 
ments obtained  by  Tate  and  wife,  to  April  term  1S17,  No.  7  :  of 
Joshua  Potter,  to  April  term  1821,  No.  440;  of  William  Kamsey, 
to  April  term  1821,  No.  441 ;  of  Grayson,  assignee  of  John  Whit- 


228  SUPREME  COURT  \Lanca*ter 

[Royer  v.  Tate.] 

acre,  executor  of  Stephen  Wray,  to  January  term  1818,  No.  52  ; 
Susannah  Ellmaker,  to  August  term  1824,  No.  28,  are  entitled  to 
be  paid  as  judgments  on  specialties  out  of  the  proceeds  of  sale  of 
the  real  estate  of  James  Hamilton;  and  that  John  Stultzfus,  Peter 
Eckert  and  Abraham  Royer  could  not  be  recognised  as  specialty 
creditors  ;  no  questions  on  those  points  are  now  open  for  discussion. 
Under  that  decision  the  prothonotary  should  pay  the  amounts  due 
on  those  judgments,  and  if  not  paid  after  this  declaration  of  the 
court,  payment  will  be  enforced  by  attachment.  The  court  will 
proceed  on  a  proper  application  by  those  who  claim  any  part  of  the 
balance  to  make  a  final  distribution  of  it  agreeably  to  law,  and, 
when  such  claims  are  made,  if  any  facts  connected  with  such  distri- 
bution should  be  disputed,  the  court  will  direct  an  issue,  if  the  party 
asking  it  be  legally  entitled  thereto." 

Same  day  (30th  June),  appeal  was  taken  by  James  Hopkins,  at- 
torney of  Abraham  Royer  and  others,  and  this  affidavit  made,  viz.  : 
"  James  Hopkins,  being  duly  affirmed  according  to  law,  saith,  that 
this  appeal  is  not  taken  for  the  purpose  of  delay,  and  further  saith 
not."  On  the  23d  of  July  1827,  bail  on  the  appeal  was  entered. 

Champney&i  Porter  and  Ellmaker,  for  the  appellees,  now  moved 
the  court  to  dismiss  the  appeal.  1.  Because  the  affidavit  made  to 
obtain  the  appeal  is  not  that  required  by  law,  and  the  security  re- 
quired by  the  Act  of  Assembly  was  not  entered. 

2.  No  decision  was  made  after  the  1st  day  of  May  1827,  from 
which  an  appeal  could  be  taken. 

They  referred  to  Pamph.  L.  471,  Act  of  the  IGth  of  April  1827; 
Purd.  Dig.  613,  Act  of  27th  March  1813. 


ontra,  contended  that  the  first  decree  of  the  1st  May 
1827,  from  which  the  appeal  was  taken,  which  was  dismissed  by 
the  Supreme  Court,  was  but  interlocutory  ;  and  that  the  decree 
made  on  the  30th  June  1827,  from  which  this  appeal  was  taken, 
was  the  final  decree.  A  decree  is  only  final  when  the  court  dispose 
of  the  whole  subject-matter  in  dispute.  Under  the  Act  of  Assembly 
authorizing  this  proceeding,  no  bail  is  required  to  obtain  an  appeal. 
The  appeal  is  effectual  without  bail,  although  without  it  there  is  no 
supersedeas  :  Magil  t>.  Caufman,  4  S.  &  R.  31.X.  The  affidavit  is 
stronger  than  that  required  by  the  act,  and  it  is  well  taken  by  the 
attorney  of  the  appellants. 

PER  CURIAM.  —  This  appeal  must  be  quashed.  There  is  yet  no 
final  decree.  The  Court  of  Common  Pleas  \\\\i*i  have  all  the  parties 
before  them,  and  dispose  of  the  whole  fund.  This  must  be  done  to 
make  a  final  decree.  Appeal  quashed. 


NOTE. — ROGERS,  J.,  was  sitting  at  Nisi  Prius  in  Philadelphia,  during  thi* 
adjourned  court,  and  took  no  part  in  the  judgments  given  at  it. 


CASES 

IN 


OP 

PENNSYLVANIA. 


LANCASTER— MAY  TERM,  1830. 


Crosby  et  al.  against  Massey  et  al. 

When  a  judgment  is  irregularly  entered  against  a  defendant,  by  default 
of  appearance,  who  being  informed  of  it,  neglects  or  refuses  for  two  tern.s, 
and  until  after  a  writ  of  inquiry  of  damages  is  executed,  to  make  an  appli- 
cation to  have  the  judgment  set  aside,  it  will  not  be  reversed  on  a  writ  of 
error. 

The  time  and  manner  of  tiling  narr.,  of  appearing,  pleading  and  signing 
judgment  for  want  of  plea,  &c.,  are  matters  of  practice  regulated  by  rules  of 
court ;  and  any  one  complaining  of  irregularity  therein,  must  apply  for  redress 
as  soon  as  he  knows  of  the  injury. 

ERROR  to  the  Common  Pleas  of  Schuylkill  county. 
This  action  was  instituted  by  the  entry  of  the  following  agree- 
ment between  the  parties  : — 

Lvdia  Massev  and  others          )    .     .    , ,        ... 
*  "  [  Amicable  action  in  trespass  on 

v.  >       i 

Neil  Crosby  and  Patrick  Crosby,    j 

We,  the  defendants  above-named,  hereby  authorize  and  require 
the  prothonotary  of  the  Court  of  Common  Pleas  of  Schuylkill 
county,  to  enter  up  the  above-stated  amicable  action  of  trespass  on 
the  case  to  July  term  1827,  and  we  agree  that  the  same  proceed- 
ings be  had  thereon,  as  though  we  had  been  regularly  summoned. 

In  witness  whereof,  we  have  hereunto  set  our  hands,  the  four- 
teenth day  of  June  1827.  NIEL  CKOSHY, 

PATRICK  CROSBY. 

I  agree  to  the  entering  up  of  the  above  amicable  action  on  the 
terms  above  mentioned.  JOHN*  RAN.VAN. 

Att'y  for  Plaintiffs 
(229) 


230  SUPREME  COURT  [Lancaster 

[Crosby  v.  Massey.] 

This  agreement  being  entered  on  the  record  to  July  term  1827, 
a  declaration  for  use  and  occupation  of  a  saw-mill,  was  filed  on  the 
28th  September  1827,  and,  on  the  same  day,  a  judgment  by  default 
of  appearance,  was  signed  by  the  plaintiff.  On  the  20th  of  Feb- 
ruary 1828,  a  writ  of  inquiry  of  damages  was  issued,  by  which  the 
damages  were  assessed  at  3325.  On,  the  31st  March  1828,  Mr. 
Locscr  appeared  for  the  defendants,  and  obtained  a  rule  to  show 
cause  why  the  judgment  and  inquisition  should  not  be  set  aside. 
In  October  1828,  upon  hearing  the  testimony,  the  court  discharged 
the  rule,  and  entered  judgment  on  the  inquisition. 

The  substance  of  the  testimony  was,  that  the  next  day  after  the 
judgment  was  entered,  Mr.  Bannan,  the  plaintiffs'  attorney,  gave 
notice  to  the  defendants  that  judgment  had  been  entered,  at  which 
they  expressed  their  surprise,  and  said  that  Mr.  Locscr  had  been 
employed  by  them  to  make  defence.  The  next  day  Mr.  Loeser 
called  on  Mr.  Bannan,  and  requested  him  to  open  the  judgment, 
which  he  refused  to  do,  but  told  Mr.  Loeser  he  might  ask  the  court 
to  set  it  aside.  At  the  next  court  after  this  conversation,  Mr. 
Loeser  said  to  Mr.  Bannan,  that  he  was  prepared  to  make  a  motion 
to  have  the  judgment  opened,  but  he  had  concluded  that  he  would 
not,  as  his  clients  would  derive  an  advantage  from  the  judgment, 
in  another  action  which  was  pending,  in  which  his  clients  were 
interested. 

Errors  assigned.  1.  The  court  erred  in  rendering  judgment 
against  the  defendants  by  default,  after  they  had  both  appeared  in 
their  proper  persons. 

2.  The  court  erred  in  refusing  to  set  aside  the  judgment  and 
inquisition. 

3.  The  court  erred  in  rendering  final  judgment  on  the  inquisi- 
tion. 

4.  The  interlocutory  judgment  entered  on  the  28th  September 
1827,  is   uncertain   and   void,  and  is   no  foundation  for  a  writ  of 
inquiry  of  damages. 

Locscr,  for  plaintiff  in  error. — This  is  a  judgment  by  default  of 
appearance,  entered  in  vacation  on  the  same  day  the  declaration 
was  filed,  when  there  was,  in  fact,  an  appearance  by  the  defendants. 
The  agreement  by  which  the  action  was  instituted  was  an  appear- 
ance, and  the  defendants  were  entitled  to  notice  of  any  further 
proceeding. 

Bannan,  for  defendant  in  error. — The  agreement  amounts  to 
nothing  more  than  a  waiver  of  the  writ  of  summons,  whereby  that 
expense  might  be  saved,  the  words  are,  "and  we  agree  that  the 
same  proceedings  be  had  thereon,  as  though  we  had  been  regularly 
summoned." 

The  judgment  was  not  void,  and  if  it  is  irregular,  the  party  must 
take  the  earliest  opportunity  to  have  the  error  corrected 


May  1830.]  OF  PENNSYLVANIA.  231 

[Crosby  v.  Massey.] 

Here  the  defendants  knew  of  the  judgment  the  next  day  after  it 
was  entered.  At  the  next  term  their  attorney  refused  to  make  the 
application  to  have  the  judgment  opened,  and  did  not  make  it  until 
after  two  terms  had  elapsed,  and  the  plaintiffs  had  been  put  to  the 
expense  of  executing  a  writ  of  inquiry  of  damages.  This  is  an 
acquiescence  which  concludes  the  defendants :  1  Penn.  Prac.  02 ; 
Morrison  v.  Wetherill,  8  S.  &  R.  502  ;  Tidd's  Prac.  434,  507  :  2 
Arch.  Prac.  201 ;  Cochran  v.  Parker,  6  S.  £  R.  549. 

Buchanan,  in  reply. — The  judgment  being  erroneous,  the  attor- 
ney of  the  party  had  no  power  to  release  the  errors ;  and  much 
less  should  his  loose  declarations  be  so  constructed  as  to  conclude 
the  defendants.  By  a  rule  of  the  court  of  Schuylkill  county,  "  no 
parol  agreement  between  attorneys  is  binding." 

The  judgment  by  default  was  interlocutory,  upon  which  no  writ 
of  error  would  lie,  until  the  writ  of  inquiry  was  executed;  the  de- 
fendants, therefore,  have  taken  the  earliest  opportunity,  and  the 
mode  pointed  out  by  law  to  correct  an  erroneous  judgment,  they 
have  not  acquiesced.  In  the  case  of  Ranck  i».  Becker,  12  S.  &  R. 
412,  this  court  reversed  the  judgment  entered  upon  an  award  of 
arbitrators,  although  the  party  had  entered  bail  for  the  stay  of 
execution. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J.,  (who  stated  the  facts  of  the  case). — It  has  been  con- 
tended here  that  the  judgment  was  irregularly  signed,  was  erroneous, 
that  defendants  had  a  right  to  wait  till  final  judgment  on  the  inqui- 
sition, and  if  the  inquest  awarded  a  small  sum,  acquiesce ;  if  a 
large  one,  take  a  writ  of  error  and  reverse  it. 

Perhaps  there  was  a  time  when  such  was  the  law,  but  much  of 
what  was  once  the  subject  of  a  writ  of  error  in  England,  or  of 
audita  querela  is  now  relieved  from  on  motion,  and  1  doubt  whether 
any  counsel  would  venture  to  argue  a  writ  of  error  on  England  in 
such  a  case  as  the  present.  The  time  and  manner  of  filing  a  narr. 
of  appearing  and  pleading  by  defendant,  and  of  signing  judgments 
for  want  of  a  plea,  &e.,  are  matters  of  practice  regulated  by  rules 
of  court,  and  the  practice  of  the  court,  and  irregularities  in  any  of 
these  respects  are  universally  remedied  by  applications  to  the  court, 
whose  rules  or  practice  is  supposed  to  have  been  violated  :  Tidd's 
Prac.  484  ;  8  8.  &  R.  502.  One  universal  rule  is,  that  the  pe/son 
complaining  of  any  irregularity  must  apply  for  redress  as  soon  as 
he  knows  of  the  injury.  In  no  court  is  he  allowed  to  lie  by.  con- 
ceal his  complaint,  subject  the  other  party  to  delav.  expense  and 
perhaps  total  loss,  and  after  all  this  to  obtain  redress  for  a  mistake. 
of  which  he  had  full  knowledge  a.s  soon  as  it  was  committed. 

The  complaint  here  is  that  the  entry  of  the  amicable  suit  was,  in 
effect,  an  appearance  by  the  defendants,  and  they  were  entitled  to  a 


232  SUPREME  COURT  [Lancaster 

[Crosby  r.  Massey.] 

rule  to  plead.  The  plaintiffs  contend  it  in  fact  only  amounted  to 
an  acknowledgment  of  service  of  writ,  but  not  to  an  appearance. 

I  think  the  plaintiff  was  wrong,  that  the  judgment  was  irregular, 
and  would  have  been,  or  ought  to  have  been,  set  aside  if  the  appli- 
cation had  been  made  at  the  next  term.  The  plaintiff's  attorney 
seems  to  have  thought  so.  It  was  not  made  at  the  next  or  even  the 
second  term.  If  we  reverse  here,  we  take  from  the  Common  Pleas 
all  power  of  regulating  their  own  practice,  all  control  over  counsel, 
and  causes  in  their  court ;  we  assume  the  control  and  supervision 
of  every  rule  in  every  cause  in  the  state,  and  all  this  not  to  effect 
justice,  but  to  restore  an  obsolete  practice  of  disregarding  right 
and  justice,  and  deciding  every  cause  according  to  the  strict  accu- 
racy and  acumen  of  the  pleader. 

I  repeat  what  has  been  often  said,  that  the  several  Courts  of  Com- 
mon Pleas  have  a  right  to  make  their  own  rules,  and  regulate  their 
own  practice.  It  is  possible  a  rule  of  court  may  be  contrary  to  an  Act 
of  Assembly  and  illegal.  I  don't  say  we  will  not  in  any  case  reverse 
for  a  practice  under  such  a  rule.  The  rules  and  practice  followed 
in  this  case  are  salutary  and  wise,  and  the  decision  of  the  court  on 
these  rules  right.  I  am  not  sure  that  such  a  decision  as  that  com- 
plained of  in  this  case,  depending  on  several  rules  of  court  and 
the  practice  under  them,  and  where  the  facts  were  brought  before 
the  court  on  affidavit,  is  the  subject  of  a  writ  of  error.  I  do  not 
say,  however,  that  we  will  not  in  any  case  reconsider  a  case  so 
brought  before  us.  In  the  present  case  the  judgment  of  the  court 
below  is  affirmed.  Judgment  affirmed. 

Referred  to,  11  C.  418 ;  3  Norris  261. 


"Wengert  et  al.  against  Beashore. 

An  action  for  maliciously  suing  out  of  a  capias  ad  respondendum  and  hold- 
ing the  defendant  to  hail,  is  not  to  he  favored  ;  and  clear  proof  of  want  of 
prohahle  cause  is  necessary  to  support  it. 

As  a  general  rule,  it  may  he  laid  down  that  such  an  action  cannot  be  sup- 
ported, when,  in  the  original  action,  the  defendant  was  obliged  to  set  up  some 
collateral  matter  by  way  of  defence,  which  did  not  appear  on  the  declaration 
or  the  face  of  the  instrument  declared  on. 

Where  such  original  action  was  brought  by  executors,  maliciously  and  with- 
out probable  cause,  in  an  action  therefor  against  them,  they  must  be  sued 
in  their  individual  capacity:  a  writ  and  declaration  calling  them  executors  is 
not  mere  description  or  surplusage,  but  is  error. 

ERROR  to  Lebanon  county. 

This  was  an  action  on  the  case  brought  by  David  Beashore  against 
Martin  Wengert  and  Abraham  Wengert,  executors  of  Ludwig 


May  1830.]  OF  PENNSYLVANIA.  233 

[Wengert  v.  Seashore.] 

Zearing,  deceased,  for  maliciously  suing  out  a  capias  ad  rcspon- 
dendum  against  him,  and  requiring  bail  without  probable  cause  of 
action. 

The  facts  of  the  case  were  these  :  Ludwick  Zearing,  in  his  life- 
time, to  wit,  in  1817,  held  David  Beashore's  bond  for  331*0,  and 
upon  his  death,  it  came  into  the  hands  of  the  defendants,  Martin 
Wengert  and  Abraham  Wengert,  his  executors,  who  to  April  term 
1824,  brought  suit  upon  the  said  bond  by  issuing  a  capias  ad 
respondendum,  and  required  bail  in  $500 ;  the  same  day  it  issued, 
the  defendant,  Beashore,  was  taken  by  the  sheriff,  and  not  being 
able  to  get  bail  he  was  imprisoned.  A  rule  of  reference  was  entered 
by  the  defendant,  and  arbitrators  were  chosen,  who  met  on  the  12th 
April  1824 ;  the  defendant  then  proved  the  consideration  of  the 
bond,  and  that  it  had  failed ;  the  arbitrators  reported  no  cause  of 
action.  Upon  the  report  being  filed,  the  plaintiffs,  Martin  and 
Abraham  Wengert,  by  advice  of  their  counsel,  refused  to  discharge 
the  defendant,  Beashore,  from  custody.  No  appeal  was  entered  by 
the  plaintiffs,  and  after  the  twenty  days  had  elapsed,  the  defendant 
was  discharged  on  habeas  corpus,  and  brought  the  present  suit  to 
recover  damages. 

The  following  points  were  put  to  the  court  by  the  defendants, 
upon  which  they  requested  them  to  charge  the  jury: 

1.  That  this  action  cannot  be  supported  by  the  plaintiff,  in  its 
present  form. 

2.  That  no  action  for  a  malicious  prosecution  can  be  maintained 
against  executors. 

3.  That  the  plaintiff  has  misconceived  his  remedy ;  that  if  any 
injury  has  been  sustained  by  him,  he  ought  to  have  sought  redress 
by  an  action  for  false  imprisonment  against  the  defendants  in  their 
individual  capacity,  and  that  no  action  can  be  maintained  by  the 
plaintiff  against  the  defendants  in  their  representative  capacity,  as 
the  executors  of  the  said  Ludwig   /earing,  deceased,  for  the  sup- 
posed injury  set  forth  in  the  declaration. 

4.  That  the  plaintiff,  before  he  can  recover  in  this  action,  must 
prove  malice  in  the  defendants,  and  want  of  probable  cause  at  the 
time  suit  was  brought. 

5.  That  when  a  plaintiff  sues  out  a  writ,  such  as  in  the  present 
case,  founded  on  the  bond  or  writing  obligatory  of  the  defendants, 
no  action  for  a  malicious  prosecution  can  be  supported  :  for  the  wnnt 
of  probable  cause,  does  not,  nor  cannot  exist. 

(.5.  That  defendants  having  called  upon  counsel,  and  issued  the 
writ  in  pursuance  of  his  directions,  and  acting  as  executors  of  Lud- 
wig /earing,  excludes  in  law,  every  presumption  of  malice  in  the 
defendants. 

7.  The  want  of  probable  cause  alone,  and  the  defendants  having 
failed  to  recover  in  the  suit  which  they  brought  against  David 
Beashore,  are  not  circumstances  sufficient  in  themselves  to  warrant 


234  SUPREME  COURT  {Lancaster 

[Wengert  v.  Beashore.] 

the  jury  in  finding  a  verdict  in  favor  of  the  plaintiffs ;  unless  the 
defendants  knew  the  want  of  probable  cause  at  the  time  they 
brought  their  suit.  That  the  jury  cannot  infer  malice  in  the  de- 
fendants from  the  circumstance  of  their  failing  to  recover  in  their 
suit  on  the  bond  against  David  Beashore. 
To  which  the  court  answered  : 

1.  This  action  can  be  supported  and  maintained  by  the  plaintiff 
in  its  present  form,  the  styling  of  the  executors  defendants  is  merely 
a  personal  description. 

2.  It  cannot  be  maintained  against  them  as  executors. 

3.  This  suit  is  not  against  them  as  executors,  in  their  represen- 
tative character  ;  and  they  are  answerable  in  this  suit,  in  their  indi- 
vidual capacity,  notwithstanding  they  are  styled  executors,  and  the 
plaintiff  has  not  misconceived  his  remedy. 

4.  The  jury  must  be  satisfied,  from  all  the  circumstances  given 
in  evidence,  that  the  suit  against  the  present  plaintiff  was  brought 
maliciously,  and  without  probable  cause ;  malice  and  want  of  pro- 
bable cause  both  are   necessary,  and  must  be  shown,  in  order  to 
maintain  an  action  for  a  malicious  prosecution,  either  of  a  civil  pro- 
ceeding or  criminal  prosecution.      Express  malice   is  not  required 
to  be  proved ;  malice  may  be  implied.     For  if  the  plaintiff's  case 
proves  that  the  proceedings  against  him  were  groundless,  and  that 
the  defendants  knew  it ;  then  malice  will  be  implied.     Holding  to 
bail  where  the  plaintiff  has  no  cause  of  action,  and  knows  that  he 
has  no  cause  of  action,  if  done  for  the  purpose  of  vexation,  entitles 
the  party  aggrieved  to  an  action  for  a  malicious  prosecution. 

5.  Want  of  probable  cause  may  exist  where  a  suit  is  brought  on' 
a  bond.     The  circumstance  of  a  suit  being  founded  on  a  bond  or 
writing  obligatory,   is  no  bar  to  an  action  for  malicious  prosecu- 
tion. 

6.  If,  upon  a  fair  representation  of  facts  to  the  counsel,  by  the 
defendants,  he  advised  the  bringing  of  a  suit  upon  the  bond,  and 
guided  by   that   advice,  they  brought  suit  on  that  bond,  the  law 
will  not  impute  malice  to  the  defendants ;  for  the  clients  ought  not 
to  suffer  by  the  honest  mistake  of  their  counsel,  if  they  innocently 
acted  by  his  advice.     But  if  they  did  not  make  a  fair  representa- 
tion of  facts  to  their  counsel,  and  knew  the  proceedings  on  the  bond 
were  groundless,   the  law  will  impute  malice   to  the   defendants. 
Whether  the  suit  was   brought  maliciously  and  for  the  purpose  of 
oppressing  the  defendant,  is  a  conclusion  of  fact  to  be  drawn  by  the 
jury  from   all   the  circumstances  of  the  case.      It  does  not  follow 
from  the  plaintiff's  failure  to  recover  in  the  action  on  the  bond,  that 
the  suit  was  brought  with  a  view  to  vex,  and  improperly  injure  the 
defendant  in  the  case. 

7.  The  want  of  probable  cause  alone,  and  the  defendants  having 
failed  to  recover  in   the  suit  which   they   brought   against  David 
Beashore,  are  not  circumstances  in  themselves  sufficient  to  warrant 


May  1830.J  OF  PENNSYLVANIA.  235 

[Wengert  v.  Seashore.  | 

the  jury  in  finding  a  verdict  in  favor  of  the  plaintiff,  unless  the  de- 
fendants knew  the  want  of  probable  cause  at  the  time  when  they 
brought  their  suit.  The  jury  cannot  infer  malice  in  the  defend- 
ants from  the  circumstances  of  their  failing  to  recover  in  their  suit 
on  the  bond. 

The  charge  of  the  court  was  assigned  as  error. 

Kline  and  Weidman,  for  plaintiff  in  error. 
J.  A.  Fisher,  for  defendant  in  error. 

The  opinion  of  the  court  was  delivered  by 

Ross,  J. — The  action  for  malicious  prosecution  is  very  different 

m  that  of  maliciously  and  vexatiously  arresting  and  holding 
defendant  to  bail.  Many  reasons  might  be  assigned  why  the  one 
should  be  sustained,  which  would  not  apply  to  the  other.  In  the 
former,  the  defendant,  even  if  acquitted,  recovers  no  costs  ;  in  the 
latter,  a  verdict  in  favor  of  defendant  entitles  him  to  costs.  In 
the  former,  the  defendant  has  no  other  redress  for  any  injury  he 
may  have  received ;  in  the  latter,  he  may  cite  the  plaintiff  before  a 
judge  to  show  his  cause  of  action,  and  if  no  sufficient  cause  be 
shown,  he  will  be  discharged  on  common  bail.  In  the  former,  if 
felony,  punishable  with  death,  he  may  not  be  allowed  to  give  bail ; 
in  the  latter,  the  defendant  is  always  allowed  to  give  bail.  In  the 
former,  he  can  only  be  exonerated  by  a  trial  and  acquittal ;  in  the 
latter,  the  defendant  may  have  any  oppressive,  vexatious  or  illegal 
process  set  aside,  on  motion  to  the  court.  In  the  former,  the 
defendant  cannot  demand  a  writ  of  error  as  a  matter  of  right ;  in 
the  latter,  he  is  entitled  to  it.  In  the  former,  the  defendant's  life 
may  be  put  in  jeopardy  ;  in  the  latter  it  never  can  :  no  punishment 
can  be  inflicted  on  him.  In  the  former,  the  prosecutor  gives  no 
bail ;  in  the  latter,  the  plaintiff,  until  of  late,  must  have  given  real 
pledges,  who,  on  failure  of  plaintiff  to  prosecute  his  suit,  &c.,  were 
liable  to  be  amerced,  and  the  plaintiff  himself  was  amerceable  />A> 
faho  clamor  e,  liable  to  costs.  See  1  Sel.  Pr.,  Introd.  4'.'.  ;>0,  f>'J  ; 
l>ull.  N.  P.  11.  The  action  for  malicious  prosecution,  properly  so 
called,  has  often  been  brought  in  this  state,  and  sustained  bv  the 
courts;  the  action  for  maliciously  and  vexatiously  arresting  and 
holding  defendant  to  bail,  it  is  believed,  has  seldom  been  brought  in 
this  state,  and  has  never  received  a  judicial  recognition.  Vet  it 
must  be  understood  that  no  doubt  is  intended  to  be  intimated  of  its 
lying  in  proper  cases,  and  under  proper  restrictions  ;  but  it  is  not 
to  be  favored.  Enough  has  been  said  to  show  there  is  a  substantial 
difference  between  the  two  descriptions  of  action.  Yet  from  not 
attending  to  the  want  of  similarity  between  them,  they  have  been. 
in  modern  times,  considered  as  analogous.  The  same  decisions  and 
principles  of  law  have  been  applied  to  both. 

The  practice  of  the  courts  in  England,  as  well  as  the  law  as  to 


236  SUPREME  COURT  [Lancaster 

[Wengert  r.  Beashore.] 

arrests  and  holding  to  bail,  is  very  dissimilar  from  the  practice  in 
this  state.  In  England,  by  the  statute  12  Geo.  1,  c.  29,  certain 
requisites  must  be  complied  with,  before  any  one  can  be  arrested  on 
civil  process.  The  courts  strictly  require  a  positive  affidavit ;  the 
sum  must  be  specified  in  it,  which  sum  must  be  endorsed  on  the 
back  of  the  writ  of  process  :  for  which  so  endorsed  the  sheriff  shall 
take  bail,  and  for  no  more.  If  no  such  affidavit  and  endorsement 
be  made,  the  defendant  is  not  to  be  arrested,  let  the  amount  of  debt 
be  what  it  may :  1  Sel.  Pr.,  Introd.  59. 

In  this  state,  it  has  long  been  the  practice  to  issue  the  capias 
without  any  affidavit,  except  in  a  very  few  cases  sounding  exclu- 
sively in  damages,  on  which  the  attorney  directs  the  endorsement 
of  such  bail  as  he  may  think  sufficient.  If  the  defendant  think 
himself  aggrieved,  he  may  apply  to  a  single  judge  in  vacation,  or  to 
the  court  in  term-time,  to  be  discharged  on  common  bail,  or  to  have 
it  mitigated.  Until  application  is  made  to  the  judge  or  to  the  court, 
the  affidavit  of  the  debt  is  seldom  made ;  and  even  then  the  plain- 
tiff's attorney  often  obtains  time  to  notify  the  plaintiff  to  come  in 
and  make  the  requisite  affidavit.  Many  of  those  suits  are  brought 
with  a  view  to  submit  them  to  arbitration,  under  the  law  of  1806, 
by  which  means  they  partially  obtain,  it  is  said,  the  benefit  of  a  bill 
of  disclosure;  acquiring  from  the  investigation  before  the  arbitra- 
tors the  evidence  of  a  cause  of  action  they  had  nothing  but  a  mere 
suspicion  of  before. 

By  the  rules  of  court,  where  the  affidavit  is  not  positive,  but  yet 
sufficient  to  convince  the  judge  that  there  is  a  good  cause  of  action, 
especially  where  it  is  founded  on  a  bond,  note,  letter,  or  other  paper 
signed  by  the  defendant,  the  judge  may,  at  his  discretion,  hold  the 
defendant  to  bail ;  thus  giving  a  power  to  the  judge  to  dispense 
with  the  production  of  a  positive  affidavit  of  the  debt  and  the 
amount  thereof,  if  a  paper  signed  by  the  defendant  is  produced. 
The  rule  indicates  in  strong  terms,  and  in  language  that  cannot  be 
misunderstood,  that  a  bond  signed  by  the  defendant  is  a  probable 
cause  of  action.  These  matters  have  been  brought  into  view  for 
the  purpose  of  showing  that  instead  of  relaxing  the  restrictions  and 
limitations  to  which  a  malicious  and  vexatious  suit  is  subjected  in 
the  courts  of  G/eat  Britain,  there  is  every  reason  here  that  exists 
there,  with  many  additional  ones  peculiar  to  this  state,  arising  out 
of  the  nature  and  mode  of  our  proceedings,  why  these  restrictions 
and  limitations  should  be  increased  and  not  diminished.  In  the 
case  of  Sterling  r.  Adams,  3  Day  411,  in  which  most  of  the 
c.-i-ses  are  brought  under  review,  analyzed,  commented  upon,  and 
contrasted  with  great  ability,  the  counsel  for  the  plaintiff  admitted 
"  that  a  person  must  be  guilty  of  a  very  gross  abuse  of  the  right 
of  suing,  before  he  will  be  liable  for  vexation.  To  the  exercise 
of  that  right  great  indulgence  is  given.  If  the  object  of  the  plain- 
tiff be  in  any  degree  to  obtain  right,  his  temper  is  not  to  be  re- 


May  1830.]  OF  PENNSYLVANIA.  237 

[Wengert  o.  Beashore.J 

garded.  When  all  the  facts  known  or  believed  by  the  plaintiff,  or 
existing  without  his  knowledge,  would  afford  any  probability  to  an 
honest  rnind  that  there  ought  to  be  a  recovery,  probable  cause  in 
law  exists,  and  a  suit,  however  unsuccessful,  injurious,  or  vindic- 
tive, will  entitle  the  defendant  to  no  remuneration.  Here  is  often 
great  wrong  and  no  remedy  ;  it  is  "  damnum  absque  injuria.''  A 
man,  from  a  malicious  motive,  may  take  upon  himself  a  prosecu- 
tion for  real  guilt,  or  he  may,  from  circumstances  which  he  really 
believes,  proceed  upon  the  apparent  guilt,  and  in  neither  case  is  he 
liable  to  this  kind  of  action :  6  Mod.  73.  To  support  it  there  must 
be  express  malice,  without  any  color  of  cause :  Holt  4 ;  C  Mod. 
25.  He  may,  therefore,  from  malicious  motives,  proceed  to  collect 
a  real  debt  by  the  process  of  capias  and  bail,  or  he  may,  from  cir- 
cumstances which  he  really  believes,  proceed  upon  the  apparent 
evidence  of  debt,  to  collect  it  by  capias  arid  bail,  and  in  neither 
case  be  liable  to  an  action  for  vexation.  The  plaintiff's  declaration 
in  this  action  shows  that  there  was  a  probable  cause  for  the  original 
suit.  It  admits  the  suit  was  founded  on  a  bond  giv.en  to  the  testa- 
tor, Ludwig  Zearing,  in  his  lifetime.  Want  of  probable  cause 
cannot  be  implied  from  an  acquittal  of  a  defendant  in  a  criminal 
prosecution,  or  a  failure  to  recover  in  a  civil  suit :  2  Selw.  X.  P. 
1057  in  note  2  ;  Day's  Coke  upon  Litt.  101  a,  note  297.  Although 
an  action  for  a  malicious  prosecution  will  lie,  it  is  not  to  be  favored: 
1  Salk.  15  ;  Bull.  N.  P.  14  ;  1  Wilson  231.  It  is  difficult  to  define 
with  precision  in  what  cases  and  under  what  circumstances  this 
action  will  lie.  It  may,  however,  be  safely  laid  down  as  a  general 
proposition,  that  where  in  the  original  action  the  defendant*  is 
obliged  to  set  up  some  collateral  matter  by  way  of  justification,  or 
defence,  which  does  not  appear  on  the  declaration,  or  the  face  of 
the  instrument  declared  on,  probable  cause  is  admitted.  This  propo- 
sition is  supported  by  precedent  and  reason  :  3  Day  432.  These 
principles,  when  viewed  collectively,  manifestly  show  that  the  plain- 
tiffs in  error  had  sufficient  probable  cause  to  shield  them  from  this 
action,  even  if  the  suit  had  been  against  them  in  their  individual 
capacity.  But  this  suit  is  clearly  against  them  in  their  represent- 
ative capacity  as  executors.  It  is  for  acts  done  by  them  as  execu- 
tors. The  declaration  recites  that  the  writ  was  issued  by  them  as 
executors  on  a  bond  given  to  the  testator,  anil  the  proceedings 
which  took  place  on  that  writ  as  the  foundation  of  defendant's  claim 
to  damages.  But  it  is  contended  that  all  these  recitals  may  be  re- 
jected as  surplusage,  as  merely  descriptive  of  the  persons  :  and  so 
the  court  below  charged  the  jury.  The  answer  to  this  position  will 
be  found  in  Robins  v.  Robins,  1  Salk.  15,  in  which  the  complaint 
was  that  the  plaintiff  caused  the  defendant  to  be  arrested  and  hold 
to  bail,  where  by  law  no  bail  was  required  :  per  Holt.  C.  J.  "This 
is  a  tender  action,  you  must  show  that  the  plaintiff  being  indebted 
to  the  defendant  in  so  much,  the  defendant  took  out  such  a  writ 


238  SUPREME  COURT  [Lancaster 

[Wengert  r.  Beashore.] 

for  so  much  more  on  purpose  to  hold  him  to  bail  you  should  set  out 
the  writ."  If  it  is  necessary  to  set  out  the  writ  in  the  original 
suit,  it  is  equally  true  that  it  is  necessary  to  prove  it  as  set  out. 
The  record  of  the  original  action  must  be  produced  on  the  trial,  and 
given  in  evidence:  '2  Selw.  N.  P.  1062.  It  must  correspond  with 
allegations  in  the  declaration,  or  it  cannot  be  given  in  evidence.  It 
therefore  cannot  be  considered  as  surplusage.  It  is  an  essential 
and  material  allegation,  without  the  proof  of  which  the  plaintiff 
could  not  support  his  action.  The  declaration  ought  to  set  forth 
the  sum  due,  and  the  process  specially,  and  that  the  first  action  is 
determined:  see  2  Selw.  N.  P.  1060;  Yelv.  110.  The  action 
then  is  against  the  plaintiffs  in  error  as  executors,  for  acts  done  by 
them  as  executors.  It  is  the  first  attempt,  it  is  believed,  that  ever 
had  been  made  to  support  such  an  action.  No  such  case  has  been 
produced,  and  it  is  believed  none  such  can  be  found  in  the  books,  or 
the  industry  of  the  defendant's  counsel  would  have  discovered  it.  It 
would  be  an  extension  of  the  remedy  by  this  kind  of  action,  which 
it  has  already  been  shown  ought  never  to  be  permitted.  Executors 
can  only  oidy  be  made  liable  in  their  individual  capacity,  if  at  all, 
for  acts  done  by  them  in  their  official  character,  by  such  irregular, 
improper  and  gross  misconduct  as  would  render  them  trespassers 
at>  initio.  In  such  a  case,  trespass  vi  et  armis,  and  not  case,  would 
be  the  remedy. 

Deplorable  would  be  the  situation  of  executors  if  they  would  be 
made  liable  in  actions  for  vexatious  suits.  They  are  bound  to  use 
every  diligence  in  collecting  decedent's  debts.  Not  oidy  to  know 
themselves  that  they  could  not  be  recovered,  but  to  be  able  to  show 
satisfactorily  in  the  settlement  of  their  accounts  to  a  querulous 
legatee  or  creditor,  that  they  could  not  be  collected.  They  may 
know  a  book  debt  or  note  is  barred  by  the  Statute  of  Limitations, 
but  they  cannot  know  that  the  debtor  will  avail  himself  of  that 
defence.  They  may  know  that  a  bond  will  be  presumed  to  have 
been  paid  from  lapse  of  time,  or  that  the  obligor  has  some  defence 
arising  out  of  other  transactions,  or  depending  on  some  collateral 
matters  involving  intricate  questions  of  law  and  fact.  But  they  are 
not,  therefore,  to  refrain  from  bringing  suit,  nor  to  be  deterred  from 
doing  so  by  being  in  danger  of  subjecting  themselves  to  an  action 
for  vexation.  Tins  would  be  contrary  to  policv  arid  common  sense, 
because  it  would  be  to  say  to  them  if  you  neglect  to  enforce  the 
collection  of  the  decedent  s  debts  with  all  due  diligence,  you  shall 
be  liable  for  such  neglect,  but  if  you  attempt  to  do  it  by  the  ordi- 
nary process  of  the  law,  you  must  run  the  risk  of  rendering  your- 
selves liable  to  a  vexatious  and  malicious  suit.  This  would  be 
placing  executors  on  the  bed  of  Procrustes.  It  therefore  appears 
that  on  an  examination  of  this  cause  on  principle,  this  action  can- 
not be  supported.  The  charge  of  the  court  on  the  first  point  that 
it  could  be  supported  and  that  styling  the  defendants  executors, 


May  1830.]  OF  PENNSYLVANIA.  239 

[Wengert  v.  Beiwhore.] 

was  merely  personal  description,  was  incorrect.  If  it  be  examined 
by  a  comparison  with  the  decisions  in  each  particular  case,  where 
the  question  has  arisen,  what  shall  amount  to  a  reasonable  or 
probable  cause,  it  will  be  found  that  the  court  were  equally  incor- 
rect. In  this  cause,  the  bond  to  the  testator  in  his  lifetime,  coming 
to  the  hands  of  the  executors,  appearing  on  the  face  of  it,  to  be  due 
and  unsatisfied,  was  much  stronger  probable  cause  than  has  been 
considered  in  most  cases  found  in  the  books,  sufficient  to  protect 
plaintiffs  from  actions  for  malicious  prosecutions  or  vexatious  suits. 
Many  of  the  cases  will  be  found  collected  in  Day's  note  to  Coke 
upon  Litt.  101  a,  note  297,  and  in  3  Day  411 ;  Selw.  N.  P. 
1057-8.  A  sufficient  probable  cause  is  laid  in  the  defendant's 
declaration  in  this  very  action ;  no  averment  being  laid  that  the 
plaintiff  knew  the  bond  was  paid,  or  in  any  way  satisfied.  The 
question  of  probable  cause  is  a  mixed  proposition  of  law  and  fact. 
Whether  the  circumstances,  alleged  to  show  it  probable  or  not 
probable,  arc  true  and  existed,  is  a  matter  of  fact ;  but  whether 
supposing  them  true,  they  amount  to  a  probable  cause,  is  a  question 
of  law:  1  Wilson  232;  Day's  Coke  upon  Litt.  101  «,  note  2i>7; 
Bull.  N.  P.  14.  The  plaintiffs  in  error  had,  clearly,  reasonable  and 
probable  cause  for  arresting  the  defendant  and  holding  him  to  bail. 
The  court  should  have  so  instructed  the  jury.  They  should  have 
informed  them  that  the  fact  not  being  disputed,  but  expressly  set 
forth  in  defendant's  declaration,  that  the  original  action  was  founded 
on  a  bond,  which  was  given  to  Zearing  in  his  lifetime,  and  which 
came  to  the  hands  of  plaintiffs  in  error  as  executors,  appearing  on 
its  face  to  be  due  and  unsatisfied,  was  a  sufficient  probable  cause  to 
justify  the  plaintiffs  in  error  in  arresting  and  holding  defendant  to 
bail,  and  that  the  verdict  must  be  for  the  plaintiffs  in  error.  There 
was  also  error,  therefore,  in  the  charge  on  the  fourth  and  fifth 
points.  The  other  points  of  the  charge  are  too  vague  to  give  any 
accurate  information  to  the  jury.  Upon  the  whole,  it  sufficiently 
appears  that  in  this  cause,  the  plaintiff"  below  should  have  been 
nonsuited,  or  not  permitted  to  sustain  his  action. 

Judgment  reversed. 

The  proposition  that  want  of  probable  cause  ia  indispensable  to  an  action 
for  maliciously  suing  out  a  capius  ad  respondendum,  is  declared  to  be  erro- 
neous by  UmsoN",  C.  J.,  in  Herman  r.  Brookerhoff,  8  W.  241. 

Referred  to,  14  Smith  1IS7,  290. 


240  SUPREME   COURT  [Lancaster 


Finncy's  Adm'rs.  against  The  Commonwealth. 

IV    ERROR. 

Lion  creditors  are  to  look  to  the  application  of  the  fund  on  which  they  have 
a  lion,  at  their  peril :  everything  which  a  due  attention  to  their  interest 
would  have  entitled  them  to  receive  being  considered  us  paid  by  operation  of 
law.  us  regards  the  debtor. 

The  defendant  in  a  judgment  on  a  recognisance  for  the  price  of  land,  taken 
at  a  valuation  in  the  Orphans'  Court,  gives  security  for  the  stay  of  execution 
allowed  bv  the  Act  of  Assembly,  after  which  the  land  is  sold  by  the  sheriff, 
and  the  money  brought  into  court.  The  plaintiff,  and  other  persons  enti- 
tled, agree  that  the  debts  of  a  deceased  brother,  who  died  in  the  lifetime  of 
the  lather,  should  be  paid  out  of  his  estate  as  liens,  although  in  point  of  fact 
they  were  not  liens,  and  the  proceeds  of  sale  are  thus  exhausted,  and  not 
applied  to  pay  the  judgment,  which  was  a  lien.  Held,  that  the  liability  of 
the  surety  on  the  recognisance  was  discharged,  and  the  agreement  of  the 
defendant  in  the  judgment  to  the  misapplication  of  the  fund  will  not,  as  re- 
spects the  surety,  alter  the  case. 

ERROR  to  the  Court  of  Common  Pleas  of  the  county  of  Dauphin. 

This  was  a  scire  facias  at  the  suit  of  the  Commonwealth  of  Penn- 
sylvania, for  the  use  of  John  Allen,  one  of  the  heirs  and  legal 
representatives  of  Joseph  Allen,  deceased,  against  Ann  Finney, 
Thomas  Finney  and  William  Finney,  administrators  of  Samuel 
Finney,  deceased,  bail  of  James  Allen,  issued  upon  a  recognisance 
entered  into  by  Samuel  Finney,  as  the  surety  of  James  Allen,  to 
obtain  the  stay  of  execution  under  the  Act  of  Assembly,  upon  a 
judgment  in  favor  of  the  plaintiff  against  the  said  James  Allen  and 
Christian  Forney.  This  judgment  was  obtained  on  a  recognisance 
given  by  James  Allen,  with  the  said  Forney,  as  his  security,  in 
the  Orphans'  Court,  upon  taking  the  real  estate  of  his  father, 
Joseph  Allen,  deceased,  at  the  appraisement.  The  recognisance, 
on  which  this  scire  facias  issued,  was  entered  into  by  James  Allen, 
the  defendant,  on  the  3d  of  January  1820  ;  and  the  plaintiff  in 
the  judgment  to  December  term  18:20,  issued  an  execution  thereon, 
which  was  levied  on  the  land  of  James  Allen,  and  that  was  sold  for 
$8050,  which  was  brought  into  court,  and  auditors  appointed  to 
ascertain  the  debts  due  by  Joseph  Allen,  deceased.  These  auditors 
reported  the  debts  due  by  the  estate  of  Joseph  Allen,  deceased, 
which  amounted  to  the  sum  of  $728.25;  and  also,  that  by  an  agree- 
ment of  the  surviving  heirs  and  legatees  (of  whom  the  plaintiff 
John  was  one),  of  the  said  deceased,  in  writing,  it  was  stipulated 
that  the  executors  of  the  said  deceased  should  pay  the  debts  of 
Tristram  Allen,  one  of  the  sons  of  Joseph,  who  died  in  his  father's 
lifetime,  out  of  the  estate  of  the  said  Joseph,  and  that  considering 
the  debts  of  Tristram,  under  this  agreement,  as  the  debts  of  Joseph, 
they  reported  those  debts.  They  amounted  to  the  sum  of  $24f>0 ; 
and  among  them  there  was  a  judgment  in  favor  of  Samuel  Finney, 
the  defendant's  intestate,  for  §130.08.  The  report  on  the  24th  March 


May  1830.]  OF  PENNSYLVANIA.  241 

[Finney's  Adm'rs.  r.  Commonwealth.] 

1823,   was   confirmed  by  the  court,   arid  a  decree  made   that  the 
money  should  be  paid  over  according  to  the  report. 

Tliis  scire  facias  was  brought  to  April  term  1823,  and  a  verdict 
under  a  charge  of  the  court  favorable  to  the  plaintiff,  which  was 
exccpted  to,  having  passed  for  the  plaintiff',  error  was  brought  by 
the  defendant. 

Fisher,  for  the  plaintiff  in  error,  argued  that  the  application  of 
the  proceeds  of  the  sale  of  the  real  estate  of  Jarnes  Allen,  to  the 
payment  of  the  debts  of  Tristram  (which  were  no  lien  on  the  fund), 
by  the  agreement  of  the  plaintiff,  instead  of  applying  them  to  pay 
his  judgment  against  James,  which  was  a  lien,  discharged  the 
liability  of  the  defendant  on  his  recognisance  upon  that  judgment. 

Any  act  of  the  obligee  which  affects  the  surety  will  discharge 
him  :  Commonwealth  v.  Miller,  8  S.  &  R.  452 ;  Diermond  v.  Rob- 
inson, 2  Yeates  324.  Here  the  means  of  satisfaction  were  in  the 
hands  of  the  plaintiff;  he  parted  with  them,  and  cannot  now  resort 
to  the  surety :  Ludlow  v.  Simond,  2  Games'  Cas.  in  Error  29,  30. 
By  any  act  which  changes  the  situation  of  the  surety  he  is  dis- 
charged :  Rathbone  v.  Warren,  10  Johns.  R.  588,  590 ;  3  Wils. 
539  ;  Phillips  v.  Thompson,  2  Johns.  Oh.  418  ;  Bellas  v.  Haas,  16 
S.  &  R.  252. 

Douglas  and  Elder,  contra. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — In  the  Bank  of  Pennsylvania  v.  Winger,  1  Rawle 
295,  it  was  held  that  lien-creditors  are  to  look  to  the  application 
of  the  fund  at  their  peril,  everything  which  a  due  attention  to  their 
interest  would  have  entitled  them  to  receive,  being  considered  as 
paid  by  operation  of  law  as  regards  the  debtor.  So  little  was  this 
principle  doubted  that  some  of  the  judges  inclined  to  think  it 
superior  to  the  equity  of  a  creditor  who  has  but  one  fund,  against  a 
prior  creditor  who  might  otherwise  resort  to  either  of  two ;  and  it 
was  barely  held  that  it  is  not.  But  no  one  entertained  the  least 
doubt  that  where  the  creditor  is  entitled  to  satisfaction  out  of  the 
proceeds  of  the  land,  both  at  law  and  in  equity,  a  loss  shall  be  borne 
by  him  whose  supineness  occasioned  it ;  much  more  so.  where  it  has 
been  produced  by  his  positive  agency.  What  then  is  the  case  here? 
The  defendant  in  a  judgment  on  a  recognisance  for  the  price  of  land, 
taken  at  a  valuation  in  the  Orphans'  Court,  gives  security  to  entitle 
himself  to  the  stay  of  execution  allowed  by  the  Act  of  Assembly, 
after  which  the  land  is  sold  by  the  sheriff  and  the  money  brought 
into  court.  The  plaintiff  and  the  other  persons  entitled  to  the  estate 
of  the  decedent,  appear  before  auditors  appointed  to  report  the  state 
of  the  liens,  and  agree  that  the  executors  of  a  deceased  brother  who 
had  died  in  the  lifetime  of  their  father,  should  pav  his  debts  out  of 

i  p.  &  w.— IG 


242  SUPREME  COURT 

[Finney's  Adm'rs.  v.  Commonwealth.] 

the  estate,  in  consequence  of  which,  these  debts  are  reported  and 
paid  as  liens,  although  indisputably  not  so  in  fact ;  and  the  proceeds 
of  the  sale  being  thus  exhausted,  the  plaintiff  proceeds  on  the  recog- 
nisance given  to  obtain  a  stay  of  execution.  Now,  to  say  nothing 
of  the  rule  which  protects  a  surety,  where  the  creditor  has  parted 
with  the  means  of  obtaining  satisfaction  from  the  principal,  it  is 
plain  here  that  if  the  levy  and  sale  were  actual  satisfaction  of  the 
original  judgment,  there  could  be  no  breach  of  the  condition  of  the 
recognisance.  But  no  one  will  pretend  that  the  plaintiff  could  have 
had  further  recourse  to  the  original  debtor,  had  he  not  consented 
before  the  auditors,  to  apply  the  proceeds  of  his  land  to  the  pay- 
ment of  his  deceased  brother's  debts.  But  he  had  no  right  thus  to 
consent,  in  prejudice  of  the  rights  of  his  surety  for  whose  indemnity 
the  land  stood  pledged  by  the  lien  of  the  judgment,  to  the  benefit 
of  which  he  would  have  become  entitled  by  payment  of  the  debt, 
but  of  which  benefit  he  will  be  deprived,  if  he  is  compelled  to  pay 
it  now,  after  the  fruits  of  the  lien  have  been  swept  away  by  a  mis- 
application of  them.  The  consent  of  the  original  defendant,  then, 
being  fraudulent,  is  to  be  laid  out  of  the  case,  and  the  original  judg- 
ment treated  as  if  it  were  satisfied  even  as  to  him  ;  and  if  so,  it 
would  be  strange,  if  payment  by  him  would  not  discharge  the  debt 
in  favor  of  his  surety.  Any  other  construction  would  enable  the 
children  to  manage  matters  so  as  not  only  to  enjoy  the  full  benefit 
of  their  father's  estate,  but  to  cast  the  burden  of  a  deceased  brother's 
debts  upon  a  stranger  ;  and  this  monstrous  result  would  be  estab- 
lished by  confirming  the  judgment  of  the  court  below.  On  the 
other  points  touched,  but  not  pressed,  we  deem  it  unnecessary  to 
express  our  opinion. 

Judgment  reversed. 

ROGERS  and  HUSTON,  JJ.,  did  not  hear  the  argument,  and  took 
no  part  in  the  judgment. 

Referred  to,  3  R.  167  ;  9  W.  &  S.  21  ;  2  H.  274. 


May  1830.]  OF  PENNSYLVANIA.  243 


Jonestown  Koad. 

A  practice  in  the  Court  of  Quarter  Sessions  of  appointing  twelve  frop- 
holders  as  reviewers  of  a  road,  from  which  the  parties  in  interest  shall 
strike  six,  the  remaining  six  beinij  the  reviewers,  is  contrary  to  the  express 
provision  of  the  law,  and  erroneous.  But  when  the  petitioners  for  the  re- 
view pray  for  the  appointment  of  hcel.ee  and  then  refuse  to  strike,  because 
some  of  the  persons  appointed  are  exceptionable,  it  is  not  error  in  the  Court 
of  Quarter  Sessions  to  refuse  to  appoint  others  in  the  place  of  those  four,  and 
confirm  the  view. 

CERTIORARI  to  the  Quarter  Sessions  of  Lebanon  county. 

At  August  sessions  1828,  a  petition  was  presented  for  a  view 
of  a  road,  which  was  granted.  The  viewers  reported  in  favor  of 
the  road,  to  November  sessions  1828,  to  which  exceptions  were 
filed,  which  upon  argument  were  overruled,  and  the  report  con- 
firmed nisi,  when  those  who  were  opposed  to  the  road  petitioned 
the  court  to  appoint  (according  to  their  practice),  twelve  freeholders, 
from  whom  the  parties  might  strike  six,  and  the  remaining  six 
should  review  the  said  road.  The  court  having  appointed  the 
twelve  freeholders,  the  parties  met  in  vacation,  as  was  the  custom, 
to  strike  three  each,  when  the  petitioners  discovered  that  four  of 
the  twelve  nominated  hy  the  court,  were  relations  of  the  petitioners 
for  the  view,  and  for  that  reason  refused  to  strike,  but  at  the  next 
sessions  petitioned  the  court  to  appoint  others  in  their  room.  This 
the  court  refused  to  do,  and  on  motion  confirmed  the  report  of  the 
viewers. 

There  were  several  errors  assigned,  none  of  which  were  insisted 
upon  but  one.  That  the  court  erred  in  not  appointing  a  competent 
number  of  freeholders  to  review  the  road. 

Weidman,  for  the  review. 
Norris,  for  the  view. 

The  opinion  of  the  court  was  delivered  oy 

HUSTON,  J. — The  complainants  in  this  case  have  filed  a  number 
of  exceptions  to  the  petition  for,  and  report  of  this  road.  There 
is  no  ground  for  any  of  them,  except  one ;  and  that  one  not  filed 
until  more  than  one  year  after  the  return  to  this  court.  The  1st 
section  of  the  Act  of  the  Gth  April  1802,  for  laying  out  roads, 
&c.,  directs,  that  the  court,  on  petition,  shall  in  open  court,  appoint 
six  discreet  and  reputable  freeholders,  <!cc.,  to  view.  \c.  In  the 
22d  section,  it  is  enacted  that  in  all  cases  where  the  Court  of  Quarter 
Sessions  are  authorized  to  grant  a  view,  for  laying  out  a  road.  \c., 
they  are  hereby  authorized  and  directed,  on  application  to  them, 
made  for  that  purpose,  to  grant  a  review  of  the  same,  at  the  ex- 
pense of  the  parties  applying ;  provided,  the  application  be  made 


244  SUPREME  COURT  [Lancaster 

[Jonestown  Road.] 

at  the  next  term  of  the  Quarter  Sessions  after  the  report  has  been 
made  on  the  first  view.  The  evident  meaning  of  the  law,  the  usage 
under  it,  and  the  former  act  of  which  it  is  in  this  respect  a  tran- 
script, is,  that  the  review  is  to  consist  of  six  discreet  and  reputable 
inhabitants,  and  like  the  viewers,  they  have  been,  and  ought  to  be 
appointed  in  open  court.  To  be  sure,  when  the  names  of  the 
reviewers  are  announced,  it  sometimes  happens,  that  one  or  more  of 
them  is  objected  to  in  open  court,  as  being  connected,  in  some  way, 
with  the  parties  contending,  or  as  being  affected  by  the  location  of 
the  road,  and  in  such  case  the  court  substitute  the  names  of  other 
persons,  free  from  objection  ;  all  this,  however,  is  done  in  open 
court.  It  seems  there  is  a  practice  in  Lebanon  county,  that  the 
court  make  a  list  of  twelve  reviewers,  and  this  is  left  in  the  office 
of  their  clerk,  and  after  the  court,  those  in  favor  of,  and  those 
opposed  to  the  road,  each  strike  out  three  names,  and  the  remain- 
ing six  are  the  reviewers.  No  practice  can  be  more  calculated  to 
produce  unfair  results  than  this.  No  one  of  the  petitioners  is 
authorized  to  strike  for  the  rest.  Any  one  of  the  petitioners  for  the 
view,  or  for  the  review,  may  then  appear  and  select  men  to  suit  his 
individual  purposes.  It  was  no  doubt  adopted  as  a  rule,  to  save 
trouble  to  the  court,  and  under  an  idea  that  it  was  fair.  It  has  riot, 
however,  the  sanction  of  the  law,  and  the  unanimous  opinion  of  this 
court  is,  that  it  is  a  bad  and  illegal  practice.  No  one  county,  nor 
several  counties,  can  adopt  a  usage  contrary  to  the  rest  of  the  state, 
and  to  an  express  provision  of  the  law.  On  the  return  of  the 
report  in  this  case,  certain  persons  presented  a  petition  to  the  court 
to  appoint  tii'flve  revolvers.  The  court  did  so ;  after  the  court,  the 
parties,  or  some  of  them,  and  their  respective  counsel,  met  to  strike 
out  three  each.  The  petitioners  for  the  review  objected  to  the 
list,  because  a  brother  of  one  of  the  persons  who  petitioned  for  the 
road,  was  one  of  the  twelve.  To  be  sure  he  could  be  struck  off, 
but  that  would  not  satisfy,  they  refused  to  strike  altogether.  There 
was  of  course  no  review,  and  the  court  confirmed  the  first  report, 
and  the  other  party  took  their  certiorari  to  this  court.  Certainly  if 
the  Court  of  Quarter  Sessions  had  refused  to  grant  a  review,  it  would 
have  been  error,  or  if  the  petition  had  been  to  appoint  six  reviewers, 
and  the  court  had  appointed  twelve,  it  would  have  been  error.  The 
party,  however,  and  the  court  acted  under  their  own  rule.  The 
object  of  that  rule  was  to  give  six  reviewers,  to  none  of  whom 
any  exception  could  be  taken.  If  the  name  objected  to,  had  been 
.struck  by  these  objecting  to  him,  the  rest  of  the  list  would  have 
been  unobjectionable,  which  was  all  that  in  reason  any  party  could 
nsk.  Every  court  must  have  the  construction  and  application  of 
its  own  rules  ;  and  it  must  be  a  strong  case  in  which  we  will  reverse, 
because  a  court  put  a  wrong  construction  on  its  own  rule.  Th»> 
Quarter  Sessions  thought  the  conduct  of  the  complainants  captious 
and  intended  for  delay,  ami  they  thought  the  object  of  their  rule 


May  1830.]  OF  PENNSYLVANIA.  245 

[Jonestown  Road.] 

was  to  give  an  opportunity  of  obtaining  a  review,  composed  of  men, 
to  none  of  whom  there  was  any  exception.  There  was  such  oppor- 
tunity given  in  this  case,  and  if  no  review  was  had,  it  was  owing 
to  the  fault  of  the  petitioners ;  a  majority  of  the  court  overrule  the 
exceptions,  and  affirm  the  proceedings  of  the  Quarter  Sessions,  be- 
cause we  are  unwilling  to  sanction  the  conduct  of  parties,  who  by 
their  own  mistakes,  or  their  own  obstinacy,  occasion  irregularities, 
and  then  endeavor  to  take  advantage  of  them,  by  applying  to  a 
superior  court. .  Proceedings  affirmed. 

SMITH,  J.,  and  Ross,  J.,  dissented. 


Ulrich  against  Voneida. 

A  bond,  with  a  warrant  of  attorney  to  confess  judgment,  authorizes  the 
entry  of  but  one  judgment :  the  entry  of  a  second,  upon  the  same  warrant, 
is  wholly  irregular. 

It  is  competent  for  a  terre-tonant,  who  is  brought  in  by  seire  facias  to 
revive  a  judgment  to  show  that  the  original  judgment  was  entered  without 
authority,  was  fraudulent,  or  otherwise  wholly  irregular. 

ERROR  to  the  Common  Pleas  of  Lebanon  county. 

On  the  15th  of  February  1820,  a  judgment  was  entered  in  the 
Common  Pleas  of  Lebanon  county,  by  virtue  of  a  warrant  of  attor- 
ney, Jacob  Voneida  v.  George  Ulrich,  for  §500,  and  within  the 
period  of  five  years,  to  wit:  to  April  term  1825,  a  scire  facias 
issued  to  revive  that  judgment,  with  notice  to  Henry  Newman,  then 
terre-tenant  of  the  land  bound  by  the  original  judgment.  At 
August  term  1825,  the  defendant  filed  an  affidavit  of  defence  and 
pleaded,  payment  with  leave,  &e.  The  cause  was  then  removed 
into  the  Circuit  Court,  from  which  it  was  remanded  to  the  Common 
Pleas,  in  May  1828,  where  it  was  down  for  trial  in  August  1828. 
On  the  7th  August,  Weidman,  attorney  for  the  defendant,  moved 
the  court  for  a  rule  to  show  cause  why  the  entry  of  the  original 
judgment  should  not  be  stricken  from  the  record,  together  with  :ill 
entries  and  proceedings  thereon  ;  on  the  ground  that  a  judgment 
had  been  previously  entered,  upon  the  same  warrant  of  attorney,  in 
the  county  of  Berks.  On  argument,  the  court  refused  to  grant  the 
motion.  14th  August  1828,  the  defendant  entered  the  plea  of  mil 
tiel  record,  upon  which  the  issue  was  joined,  which  the  court  pro- 
ceeded to  try.  The  plaintiff  having  shown  the  original  judgment  in 


246  SUPREME  COURT  [Lancaster 

[Ulrich  v.  Voneida.] 

Lebanon  county ;  the  defendant,  to  maintain  the  issue  on  his  part, 
called  upon  Morris,  the  plaintiff's  attorney,  to  produce  the  bond  and 
warrant  upon  which  the  original  judgment  was  entered,  which  he 
refused  to  do.  The  defendant  then  gave  in  evidence  the  copy  of  a 
record  of  a  judgment  entered  on  the  14th  February  1820,  in  the 
county  of  Berks,  on  a  bond  and  warrant  of  attorney  of  the  same 
date  and  terms,  as  were  recited  in  the  judgment  which  was  then 
trying.  After  argument,  the  court  decided  in  favor  of  the  plaintiff, 
to  which  exception  was  taken  by  the  defendant. 

The  defendant's  counsel  then  asked  permission  to  add  the  pica 
of  non  est  factum,  as  to  the  bond  and  warrant,  upon  which  the 
original  judgment  was  entered,  and  that  said  judgment  was  entered 
without  authority.  This  plea  was  objected  to  by  the  plaintiff's 
counsel,  and  rejected  by  the  court,  to  which  exception  was  taken  by 
defendant. 

The  jury  being  then  sworn,  and  the  plaintiff  having  given  in 
evidence  the  record  of  the  original  judgment,  the  defendant's  coun- 
sel asked  the  court  to  discharge  the  jury,  and  delay  the  trial  of  the 
cause,  upon  his  exhibiting  the  record  of  a  judgment  entered  in  the 
county  of  Berks,  upon  the  same  warrant  of  attorney,  but  prior  to 
the  entry  of  the  judgment  in  the  county  of  Lebanon,  and  upon 
parol  proof,  that  an  endorsement  on  the  said  bond  and  warrant, 
which  was  then  in  possession  of  plaintiff's  attorney,  shows  that  the 
judgment  in  each  county  was  entered  upon  the  same  warrant,  and 
then  again  asked  the  court  to  grant  the  defendant  a  rule  to  show 
cause  why  the  original  judgment  should  not  be  vacated  and  stricken 
froin  the  record ;  which  motion  was  refused  by  the  court,  and  to 
which  the  defendant  took  exception. 

The  defendant  having  proved  a  notice  to  JYom's,  counsel  for 
plaintiff,  to  produce  the  bond  and  warrant  of  attorney,  upon  which 
the  original  judgment  was  entered,  offered  parol  evidence  that 
there  was  an  endorsement  on  said  bond,  showing  that  a  judgment 
had  been  entered  by  authority  thereof,  in  the  county  of  Berks, 
prior  to  the  entry  in  the  county  of  Lebanon,  which  was  objected 
to  by  the  plaintiff,  the  objection  was  sustained  and  exception 
taken  by  defendant.  The  defendant  then  offered  the  record  of  the 
judgment  in  Berks  county,  to  show  fraud  in  the  plaintiff,  in  enter- 
ing the  same  judgment  again  in  Lebanon,  which  was  objected  to, 
overruled  and  exception  taken  by  defendant.  A  verdict  and  judg- 
ment for  the  plaintiff  were  rendered  in  the  court  below,  and  this 
writ  of  error  was  sued  out  by  the  defendant.  Errors  were  assigned 
in  the  opinion  of  the  court,  as  contained  in  the  several  bills  of 
exception. 

Wcidman  (with  whom  was  Kline],  for  plaintiff  in  error,  ad- 
mitting the  rule  that  a  record,  when  its  validity  is  put  in  issue  in 


May  1830.]  OF  PENNSYLVANIA.  247 

[Ulrich  v.  Voneida.] 

the  same  court,  must  be  tried  upon  inspection,  yet  contended  that 
this  case  did  not  couie  within  that  rule,  for  by  the  28th  section  of 
the  Act  of  24th  February  1806,  Purd.  Dig.  409,  a  special  mode 
was  provided  of  creating  a  lien  upon  real  estate.  The  prothonotary 
is  authorized  to  make  an  entry  of  a  note,  bond  or  other  instrument 
of  writing,  which  contains  an  authority  to  confess  judgment  against 
the  party,. and  the  same  shall  be  a  lien  on  his  real  estate.  There  is 
no  act  of  the  court  necessary  ;  nor  can  any  be  legally  exercised,  it 
is  not,  therefore,  a  judgment  of  the  court  which  must  be  tried  by 
inspection  ;  but  if  fraud  on  the  part  of  the  prothonotary,  or  want 
of  authority,  shall  be  alleged,  like  other  facts,  they  oust  be  referred 
to  the  jury. 

If  the  court  had  a  right  to  try  these  facts  they  should  have 
decided  in  favor  of  the  defendant.  In  Martin  v.  Hex,  6  S.  &  R. 
296,  the  very  point  which  arises  here  is  settled,  that  a  judgment 
entered  upon  a  warrant  of  attorney,  upon  which  a  judgment  had 
been  previously  entered  in  another  county  is  irregular.  In  this 
case  the  court  had  all  the  facts  before  them,  which  made  it  abun- 
dantly plain  that  this  warrant  of  attorney  via.sfunctus  officio  by  the 
entry  of  the  judgment  in  Berks  county ;  the  same  is  laid  down  in 
Fairchild  v.  Camac,  3  Wash.  C.  C.  R.  558.  The  court  erred  also 
in  refusing  the  special  plea  offered  by  the  defendant ;  by  the  Act 
of  the  21st  March  1806,  section  6,  Purd.  Dig.  411,  the  right  to 
alter  the  pleadings  so  as  to  affect  the  merits  of  the  cause,  is  given 
even  upon  the  trial,  and  to  refuse  that  right  is  error  :  Sharp  r. 
Sharp,  13  S.  &  R.  445.  The  case  of  Ilartzel  v.  Reiss,  1  Binn 
291,  supports  the  position  that  upon  the  trial  of  the  scire  facias 
suit,  even  Ulrich,  the  original  defendant,  might  have  given  in  evi- 
dence that  the  original  warrant  of  attorney  was  exhausted.  The 
rule  of  law  that  no  evidence  shall  be  given  as  a  defence  to  a  scire 
facias,  which  goes  to  affect  the  legality  of  the  original  judgment, 
only  applies  to  parties  &ndprivies  to  that  judgment,  and  it  is  always 
competent  for  a  third  person  who  becomes  interested  to  show  that 
the  judgment  is  illegal  or  fraudulent,  and  this  may  be  shown  even 
in  a  collateral  action  :  Griswold  v.  Stewart  et  al.,  4  Cowen  457. 
Here  Newman,  the  terre-tenant,  was  a  purchaser  of  the  land  for  a 
valuable  consideration,  and  the  first  opportunity  which  the  law 
afforded  him  to  defend  against  this  illegal  judgment  wis  taken 
advantage  of.  lie  could  not  have  sustained  a  writ  of  error  to 
reverse  the  original  judgment :  Bull.  N.  P.  2-32.  Newman  having 
therefore  done  everything  which  lie  could  do  to  divest  his  land  of 
this  illegal  lien,  the  court  having  refused  to  open  the  judgment 
unless  he  can  avail  himself  of  his  defence  in  the  si-ire  facias,  his 
case  is  an  anomaly  in  the  law — a  legal  defence  without  an  oppor- 
tunity of  making  it.  It  was  certainly  competent  for  the  defendant 
to  show  that  the  plaintiff  acted  fraudulently  in  entering  the  judg- 


248  SUPREME  COURT  [Lancaster 

[Ulrich  v.  Voncida.] 

merit  a  second  time,  and  that  the  prothonotary  knew  the  fact  also 
that  the  judgment  had  been  entered  before,  and  fraud  is  a  matter 
of  fact  for  the  jury  ;  and  if  found  by  them  it  would  have  destroyed 
the  plaintiff's  right  to  recover  :  1  Madd.  Chan.  300 ;  but  the  court 
would  not  permit  us  to  give  this  evidence. 

Norris,  for  defendant  in  error. — The  motion  by  defendant's 
coun.se!  on  the  7th  August  1828,  to  vacate  the  judgment,  was  the 
legal  and  only  remedy  of  the  party  complaining  of  the  entry  of  the 
judgment  without  authority :  Cook  v.  Jones,  Cowper  227 ;  2 
Strange  1043;  Cas.  temp.  Ilardwicke  220;  Strong  v.  Tompkins, 
8  Johns.  R.  77  ;  Casscl  v.  Cooke,  8  S.  &  R.  296 ;  Neff  v.  Barr, 
14  Id.  16(5  ;  Lysle  v.  Williams,  15  Id.  135;  Kalbach  v.  Fisher,  1 
Rawlc  323. 

The  defendant,  upon  his  motion  to  vacate,  was  fully  heard.  All 
the  evidence  offered  on  the  trial,  under  the  plea  of  payment  and 
notice  was  given  to  the  court,  and  after  hearing  it,  and  the  counsel 
of  George  Ulrich  in  support  of  it,  the  court  rejected  the  applica- 
tion. This  judgment  upon  motion,  and  on  a  disclosure  of  the  merits 
of  the  defendant,  is  decisive  against  them.  It  is  a  res  judicata  :  17 
S.  &  R.  278;  6  Term  Rep.  471;  7  Id.  155,  cases  under  the 
Annuity  Act  of  17  Geo.  III.,  ch.  36.  After  the  judgment  of  the 
court  on  the  motion  another  trial  of  the  same  matter  could  not  be 
granted  to  the  defendant  in  the  same  or  any  other  court,  under  any 
form  or  course  of  proceeding.  All  the  evidence,  therefore,  offered 
by  the  defendant  on  the  trial  under  the  plea  of  payment,  to 
impeach  the  validity  of  the  original  judgment,  was  properly  ex- 
cluded, and  this  disposes  of  the  2d,  3d,  4th  and  5th  bills  of  excep- 
tion. But,  for  another  reason,  this  evidence  could  not  be  received. 
To  a  scire  facias  upon  a  judgment,  and  under  the  plea  of  payment, 
the  law  is  settled  that  in  no  case,  under  any  circumstances,  can  the 
validity  or  merits  of  the  original  judgment  be  inquired  into  for  the 
purpose  of  furnishing  a  defence.  Where  a  judgment  has  been  ob- 
tained surreptitiously,  it  will  be  vacated  on  motion  ;  and  where  it 
is  suffered  by  confession  or  default,  if  there  be  a  defence,  the  court 
will  open  the  judgment  and  let  the  defendant  into  a  trial :  Cowper 
727  ;  8  Johns.  R.  377  ;  1  Binn.  280 ;  4  Id.  61 ;  IS.  &  R.  540 : 
5  Id.  65;  11  Id.  155;  15  Id.  135;  1  Rawlc  323;  14  S.  &  R.  178. 
The  issue  in  law,  upon  the  plea  of  mil  fid  record,  embraced  in  the 
first  bill  of  exceptions,  was  tried  by  the  court  and  found  for  the 
plaintiff.  Error  cannot  be  conceived  in  this,  and  therefore  none  has 
been  shown.  To  the  decision  of  the  court  upon  the  issue  in  law, 
on  the  plea  of  a  former  recovery,  the  plaintiff  in  error  has  not  ex- 
cepted  in  the  court  below,  nor  is  it  assigned  for  error  in  this  court. 

Even  on  the  argument,  the  counsel  for  the  plaintiff  in  error  did 
not  ask  the  court  to  permit  him  to  assign  this  as  a  matter  in  which 


May  1830.]  OF  PENNSYLVANIA.  249 

[Ulrich  v.  Voncida.] 

there  was  error.  But  there  is  no  error  in  the  replication  to  the 
plea,  nor  in  the  trial  and  judgment.  The  plaintiff'  may  and  must 
reply  to  a  plea  of  a  former  recovery  for  the  same  cause  of  action — 
first  mil  tiel  record,  upon  which  issue  is  taken  in  law  to  the  court, 
and  tried  by  the  court,  arid  if  the  finding  be  for  the  plaintiff,  the 
plea  is  entirely  disposed  of.  But  if  the  plaintiff  do  riot  choose  to 
rely  upon  the  non-existence  of  the  record  of  the  judgment,  he  may 
in  the  second  place,  together  with  the  denial  of  its  existence,  deny 
or  traverse  the  fact  of  the  recovery  being  for  the  same  cause ;  and 
the  issue  is  then  a  mingled  one  of  law  and  fact,  and  from  our  de- 
cisions in  Pennsylvania,  it  appears  must  be  tried  by  the  jury.  No 
formal  judgment  upon  the  existence  of  the  record  is  entered  by  the 
court.  The  jury  find  for  the  plaintiff  or  defendant,  and  judgment 
is  passed  upon  the  verdict.  There  is  no  error  in  this.  The  want 
of  a  formal  judgment  by  the  court  upon  the  plea  of  nul  tiel  record, 
when  it  appears  with  the  plea  of  payment,  and  all  is  found  by  the 
jury,  is  not  error:  8  S.  &  11.  228 ;  6  Id.  544-573. 

The  plea  of  a  former  suit  pending,  like  all  the  rest  (excepting 
payment  with  leave),  was  offered  on  the  trial  of  the  cause.  The 
rejection  of  it  requires  no  answer.  A  plea  in  abatement,  after  a 
plea  in  bar,  cannot  be  received,  and  if  received,  it  is  a  nullity:  4 
S.  &  R.  238  ;  15  Id.  150.  The  alleged  record  of  a  recovery 
in  Berks,  for  the  same  debt,  is  offered  in  the  fifth  bill  of  exceptions 
as  evidence  to  the  jury  of  fraud  in  the  plaintiff.  Under  the  plea 
of  payment  to  the  scire  facias,  fraud  in  obtaining  the  original  judg- 
ment cannot  be  given  in  evidence:  10  S.  <fc  R.  240;  13  Id.  254. 
Finally,  the  justice  of  the  case  is  with  the  verdict.  For  if  it  were 
true  that  judgment  had  been  entered  in  Berks  upon  the  same  bond 
and  warrant  of  attorney,  it  appears  by  the  defendant's  plea  of  a 
former  recovery,  that  the  judgment  in  Berks  alleged  to  be  for  the 
same  debt,  was  on  the  15th  August  1828,  at  the  time  of  the  trial 
wholly  unsatisfied ;  and  that  not  a  cent  of  the  debt  for  which  this 
verdict  was  given  had  ever  been  paid.  George  Ulrich  is  insolvent. 
He  had  no  real  estate  in  Berks  county  in  1820,  and  nothing  there 
which  the  alleged  judgment  could  bind.  lie  then,  and  since,  has 
resided  in  Lebanon  county.  He  then  owned  a  tract  of  land  on 
Milback  mountain,  in  Lebanon,  intended  and  fixed  by  our  judgment 
for  the  payment  of  tins  debt.  And  to  defeat  it,  he  assigned  all  his 
land,  in  1824,  to  his  uncle,  Henry  Newman,  the  terre-tenant. 
Newman,  aware  of  his  connection  with  his  nephew  George,  in  rela- 
tion to  this  judgment,  when  called  in  as  terre-tenant,  by  the  seire 
facias,  did  not  dare  to  take  defence.  lie  therefore  has  no  cause  to 
complain  of  the  verdict  and  judgment.  Would  a  court  of  justice, 
under  these  circumstances,  relieve  the  defendant  on  motion  and  va- 
cate the  judgment  in  Lebanon?  Surely  not.  Vacating  the  judg- 
ment would  vacate  the  debt  for  ever.  But  assuming  the  fact  that 


250  SUPREME  COURT  [Lancaster 

[Ulrich  v.  Voneida.] 

the  judgment  was  first  entered  in  Berks,  a  chancellor  would  only 
grant  relief  on  terms ;  on  securing  or  paying  the  debt :  1  Madd. 
Oh.  225 ;  14  S.  &  R.  170. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — His  honor,  after  having  fully  stated  the  case,  said: 
The  errors  assigned  impeach  the  several  decisions  of  the  Court  of 
Common  Pleas,  and  present  as  the  principal  question  for  our  con- 
sideration this  point,  whether  it  is  competent  for  the  terre-tenant,  in 
this  scire  facias,  to  object  to  the  original  judgment  by  showing  that 
it  was  entered  without  authority,  or  fraudulently  ? 

With  regard  to  the  parties  to  that  judgment,  it  is  conceded  that 
nothing  which  would  have  been  a  defence  in  an  action  upon  the 
bond,  could  be  pleaded  or  given  in  evidence  upon  the  scire  facias. 
But  the  terre-tenant,  who  is  neither  party  nor  privy,  is  he  con- 
cluded ?  Henry  Newman  purchased  the  land  of  the  defendant  for 
a  valuable  consideration,  after  the  judgment  was  entered  in  Leb- 
anon county.  Until  the  scire  facias,  with  notice  to  him,  was  issued, 
he  had,  however,  no  opportunity  of  questioning  its  validity.  By 
that  writ  he  was  made  a  party  in  interest,  and  called  upon  to  de- 
fend his  property  against  the  operation  of  the  original  judgment. 
The  effect  of  the  notice  was  not  merely  that  he  should  show  cause 
why  execution  should  not  issue,  but  why  it  should  not  issue  against 
the  land  in  his  possession,  charged  with  the  lien  of  the  judgment. 
To  deny  him  the  right  of  impeaching  the  judgment,  would  be  to 
take  away  his  only  remedy  and  make  the  call  upon  him  for  a  de- 
fence by  the  notice  of  this  scire  facias,  a  mockery.  In  2  Sulk.  GOO, 
Chief  Justice  Holt  says,  "upon  the  scire  facias  the  terre-tenants 
will  have  notice,  arid  they,  being  strangers  to  the  judgment,  may 
falsify  it."  See  also  4  Cowen  457.  This  we  consider  to  be  the 
rule  of  law  which  must  govern  the  present  case,  and  therefore 
decide  that  it  was  competent  for  Henry  Newman  to  show  that  the 
judgment  on  which  the  scire  facias  issued,  was  entered  without 
authority,  or  fraudulently  entered.  It  has  been  repeatedly  deter- 
mined that  a  bond  with  a  warrant  of  attorney  to  confess  judgment 
authorizes  the  entry  of  but  one  judgment ;  and  accordingly  that 
when  judgment  is  once  entered,  the  warrant  becomes  functuts  officio. 
A  second  or  subsequent  judgment  by  virtue  of  the  same  warrant  is 
therefore  wholly  irregular :  Add.  R.  267  ;  3  Wash.  C.  C.  R.  558 ; 
Martin  v.  Rex,  6  S.  fc  R.  2W ;  14  170. 

The  Court  of  Common  Pleas  erred  in  denying  to  the  tcrre-tcnant 
all  opportunity  of  showing,  by  pleading  it  specially,  or  by  evidence, 
under  the  plea  of  payment,  with  leave,  &c.,  that  the  powers  of  the 
warrant  of  attorney  by  which  this  judgment  was  entered  in  Lebanon 
county,  had  been  satisfied  by  a  previous  judgment,  entered  on  the 
same  bond  and  warrant  in  Berks  county.  WP  do  not  think  that 


May  1830.]  OF  PENNSYLVANIA.  251 

[Ulrich  v.  Voncida.] 

the  decision  of  the  issue  upon  the  plea  of  mil  ticl  record  precluded 
the  terre-tenant  from  subsequently  pleading  or  showing  by  evidence 
the  fact  of  a  prior  judgment,  entered  upon  the  same  warrant  in 
Berks  county.  The  question  on  that  issue  was  this,  is  there  such 
a  judgment  in  Lebanon  county  as  is  set  forth  in  the  scire  facias? 
This  was  to  be  determined  upon  inspection,  and  the  judgment  was 
shown.  But  although  the  record  was  fair  to  the  eye,  arid  although 
this  was  sufficient  to  justify  the  decision,  yet  the  terre-tenant  might, 
without  inconsistency,  have  been  permitted  to  prove  that  it  was 
irregular,  for  the  reasons  before  mentioned,  and  ought  riot,  in  good 
conscience,  to  be  executed  upon  his  land.  In  addition  to  this,  as  a 
judgment  has  the  effect  of  merging  the  bond  in  it,  it  may  fairly  be 
inquired,  on  another  trial,  whether  a  second  judgment  could  after- 
wards be  had  thereon  in  another  county.  See  Clement  v.  Bursh,  3 
Johns.  Cas.  180.  We  are  of  opinion,  therefore,  that  the  judgment 
should  be  reversed. 

GIBSON,  C.  J. — Except  for  excess  of  jurisdiction,  the  judgment 
of  a  court  of  record  is  never  void:  3  Inst.  321  Letters  of  admin- 
istration can  be  vacated  only  by  a  judicial  sentence  :  Cro.  Eliz.  315  ; 
and  an  order  of  justices  of  the  peace  likewise,  being  a  judicial  act, 
is  not  ipso  fact o  void,  but  good  till  it  is  quashed:  -  Sulk.  074.  So 
the  judgment  of  a  superior  court  is  voidable  only  on  error  (Id.), 
even  in  the  case  of  an  outlawry,  which  is  expressly  declared  to  be 
void  by  a  statute  :  1  Roll.  II.  159  ;  and  a  judgment  on  warrant  of 
attorney  is,  in  contemplation  of  law,  a  judgment  rendered  by  the 
court.  On  the  plea  of  mil  ticl  record,  then,  how  could  the  court 
below  inquire  whether  the  authority  on  which  the  judgment  was 
entered  had  been  exhausted  by  entering  a  previous  judgment  in 
another  county  ?  The  defendant  had  no  remedy,  but  an  application 
to  have  the  judgment  set  aside,  and  to  that  he  had  had  recourse  with- 
out success,  and  probably  for  a  good  reason.  No  one  will  pretend 
that  a  second  recovery  for  the  same  cause  is  merely  void,  or.  where 
the  previous  recovery  has  not  been  pleaded,  even  erroneous.  The 
court  below,  then,  had  before  it  a  judgment  irregular,  if  you  will, 
but  unreverscd,  which  is  a  collateral  proceeding  between  the  same 
parties  it  was  proposed  to  destroy.  In  Share  r.  Becker.  <s  S.  \  11. 
241,  the  defendant  in  a  scire  facias  on  a  judgment  upon  a  report  of 
arbitrators,  was  not  permitted  to  gainsay  the  judgment  by  evidence 
of  irregularity  in  the  proceedings,  which  is  the  very  case  at  bar  : 
and  in  the  Lessee  of  Iliester  r.  Fortney,  -  Binn.  40.  it  was  held 
that  a  judgment  on  a  scire  facias,  after  one  ni/til,  which  of  course 
might  have  been  set  aside  or  reversed  on  error,  cannot  be  ques- 
tioned collaterally  in  another  suit,  and  the  same  doctrine  was 
asserted  in  King  r.  King,  antt',  1U.  There  is  an  endU-ss  list  of 
authorities  for  this  familiar  elementary  principle,  which  is  the  foun- 


252  SUPREME  COURT  [Lancaster 

[t'lrich  v.  Voneida.] 

dation  of  even  the  English  practice  of  setting  aside  judgments  sur- 
reptitiously obtained  on  warrant  of  attorney,  without  which,  it  is 
said,  the  party  would  be  without  remedy1  —  in  other  words,  he 
would  not  be  able  to  take  advantage  of  the  irregularity  on  a  scire 
facias,  by  evidence  or  pleading.  On  the  plea  of  nul  tiel  record, 
therefore,  it  seems  to  me,  the  court  did  right  to  give  judgment  for 
the  plaintiff. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

Overruled,  by  Ilauer's  Appeal,  5  W.  &  S.  473  ;  Davidson  ».  Thornton,  7 
Burr  12s  ;  Dickerson  and  Haven's  Appeals,  Id.  255. 
Referred  to  as  overruled,  Bright.  Kep.  456. 
Referred  to,  6  II.  484. 


Porter  against  The  Commonwealth. 

• 

The  account  of  a  prothonotary  being  settled  by  the  accountant  officers  of 
tin-  «tate,  to  which  ho  files  his  objections  in  writing,  and  takes  an  appeal  to 
the  Common  Pleas,  upon  the  trial  of  the  cause  he  cannot  give  evidence  to 
support  other  objections  than  those  made  at  the  time  of  appeal. 

I'pon  the  settlement  of  such  account  of  a  prothonotary  out  of  office,  the  ac- 
countant officer  is  not  confined  to  the  settlement  of  items  embraced,  as  to  date, 
within  the  fiscal  year. 

APPEAL  from  the  Circuit  Court  of  Dauphin  county,  held  by 
Justice  Huston. 

The  defendant,  George  B.  Porter,  Esq.,  was  prothonotary  of  the 
county  of  Lancaster,  from  April  1818  until  February  1821,  when 
he  resigned,  and  during  that  time  it  was  admitted  he  received 
$1  ~>00  per  annum. 

On  the  12th  June  1822,  the  auditor-general,  by  a  circular  letter, 
called  upon  the  defendant  to  settle  an  account  of  the  fees  of  office 
received  by  him  as  prothonotary  of  the  Common  Pleas  and  District 
<'<>urt,  after  he  went  out  of  office,  to  wit,  from  February  1821  till 
the  1st  July  1822.  In  pursuance  of  this  call,  the  defendant,  on 
the  17th  July  1822,  furnished  an  account  of  the  fees  received  by 
him  from  his  successor  in  office,  and  others,  amounting  to  31965.20. 
In  April  1824,  the  auditor-general  and  state  treasurer  settled  the 
following  account: 

1  See  Cook  c.  Jones,  Cowp.  727-S. — REPS. 


May  1830.]  OF  PENNSYLVANIA.  253 

[Porter  v.  Commonwealth.] 

Dr.  George  B.  Porter,  Esq.,  late  prothonotary,  &c.,  of  Lancaster 
county.  To  the  Commonwealth,  in  account  for  surplus 
fees  of  office : 

To  fees  received  from  the  time  he  resigned  until  the 

1st  July  1822,  per  his  return  on  oath  .         .         .     §1965  20 

Deduct,  for  error  made  by  him         .         .         .         .  75  91 

§1889  29 
1822,  November  2d,  received  of  F.  A.  Muhlenburg, 

Esq.,  prothonotary,  per  receipt  filed      .         .         .         3G8  32 


§2257  61 
Deduct  50  per  cent,  thereof,  to  which  he  is  entitled, 

agreeably  to  Act  of  24th  March  1818         .         .       1128  80 J 

Tax  due  Commonwealth     §1128  80  J 

Settled  and  entered,  JAMES  DUNCAN, 

Auditor- General's  office,  29th  April  1824. 

Approved  and  entered,  WM.  CLARKE, 

Treasurer's  office,  29th  April  1824. 

From  the  settlement  of  this  account  the  defendant  entered  an 
appeal  to  the  Court  of  Common  Pleas,  on  the  8th  July  1824,  and 
specified  the  following  objections  thereto  : — 

"  That  the  taxation  is  illegal  and  improper.  The  law  directs 
accounts  of  this  kind  to  be  furnished  annually  to  the  auditor-gen- 
eral ;  and  the  year  is  to  commence  and  be  computed  from  the  first 
day  of  October,  the  account  is  then  to  be  settled  accordingly  by 
the  auditor-general ;  and  whenever  the  amount  of  such  account 
exceeds  the  sum  of  $1500,  the  officer  shall  be  charged  with  fifty  per 
cent,  on  the  amount  of  such  excess,  to  be  paid  by  him  into  the 
treasury,  for  the  use  of  the  Commonwealth.  Whereas  the  above- 
mentioned  settlement  is  not  on  an  account  furnished,  nor  is  the 
time  for  which  the  same  is  intended  as  a  settlement,  .stated  ur 
known  to  defendant.  It  appears  to  be  from  5th  February  1S21  to 
April  1824.  One-half  of  all  the  fees  stated,  is  charged  against  the 
defendant  as  due  to  the  Commonwealth,  although  the  only  authority 
given  to  the  accountant  officers  to  tax  an  account  of  this  kind  is 

where  the  fees,  in  one  year,  exceed  the  sum  of  $1500.   The  defend- 
j 

ant  claims  to  be  allowed  $1500  each  year  clear  of  tax,  and  of  the 
excess  he  is  willing  to  pay  fifty  per  cent,  into  the  treasury  for  the 
use  of  the  Commonwealth.  G.  B.  Po u ILK. 

"July  8th  1824. 
'*  To  David  Mann,  Esq.,  Auditor-General  of  the 

Commonwealth  of  Pennsylvania." 


254  SUPREME  COURT  [Lancaster 

[Porter  P.  Commonwealth.] 

The  appeal  was  filed  in  the  Common  Pleas,  together  with  the 
objections. 

In  1820,  a  declaration  in  assumpsit,  for  money  had  and  received 
was  filed ;  to  which  the  defendant  then  put  in  the  pleas  of  non- 
assumpsit,  and  payment  with  leave,  &c.,  when  the  cause  was  certi- 
fied into  the  Circuit  Court.  On  the  trial,  after  the  plaintiff  had 
given  in  evidence  the  accounts  and  settlement,  as  before  stated,  and 
rested,  the  defendant  offered  in  evidence  the  depositions  of  John 
Mathiot  and  Christian  Backman,  Esqs.,  which  were  objected  to  by 
the  plaintiff  and  overruled  by  the  court.  The  defendant  then 
offered  to  put  in  the  following  plea,  which  contains  the  substance 
of  the  depositions  which  had  been  rejected : — 

"That  on  the  12th  June  1822,  he  was  called  upon  by  James 
Duncan,  Esq.,  auditor-general,  to  render  an  account  upon  oath  or 
affirmation,  of  all  fees  of  office  which  had  been  received  by  him 
since  his  resignation  or  removal,  up  to  the  first  day  of  July  1822 ; 
and  that  he  rendered  an  account  in  pursuance  of  this  call  ;  the 
total  fees  received  and  returned  in  said  account  as  corrected,  being 
$1889.29  ;  that  by  an  error  in  the  settlement  of  the  amount  of  fees 
due  by  John  Mathiot,  late  sheriff,  to  the  defendant,  he  returned  in 
the  said  account  to  the  auditor-general,  $57.8,  which  were  not 
prothonotary's  fees,  or  due  to  the  defendant,  and  which  have  been 
refunded  to  the  said  John  Mathiot,  Esq.  And  that  of  the  fees  so 
received,  and  of  which  an  account  was  rendered  to  the  auditor- 
general,  after  deducting  the  said  error  of  $57.8,  the  sum  of 
$150.27,  were  fees  received  in  the  District  Court  for  the  city  and 
county  of  Lancaster ;  and  that  of  the  sum  of  $368.32,  stated  in 
the  claim  of  plaintiff  to  have  been  received  by  defendant  on  the  2d 
November  1822,  the  sum  of  $49.52|,  were  fees  received  in  the 
District  Court  for  the  city  and  county  of  Lancaster,  and  which  the 
defendant  is  not  liable  to  account  for,  and  never  assumed  to  pay. 
All  which  he  is  ready  to  verify,  &c." 

The  court  refused  to  receive  the  plea. 

The  defendant  requested  the  court  to  charge  tne  jury  on  tne 
following  points  of  law:  — 

1.  That  by  the  existing  laws  in  relation  to  settling  the  accounts 
of  those,  who  had  held  the  office  of  prothonotary,  the  auditor-gen- 
eral has  power  to  call  on  such  persons,  and  compel  them  to  account 
upon  oath  or  affirmation  ;  but  that  he  must  proceed  agreeably  to 
the  provisions  of  the  Act  of  10th  March  1810,  and  must  make 
settlement  of  the  account  for  each  year,  ending  on  the  first  day  of 
October,  and  in  such  settlement  can  include  nothing  more  than  the 
account  for  one  year;  or  if  he  has  power  to  settle  the  accounts  for 
more  than  a  year  at  one  time,  such  accounts  must  be  settled  separ- 
ately, and  the  amount  for  each  year,  ending  on  the  1st  October,  be 
kept  distinct.  That  as  the  auditor-general  undertook  to  call  upon  the 


May  1830.]  OF  PENNSYLVANIA.  255 

[Porter  v.  Commonwealth.] 

defendant,  by  letter  of  the  12th  June  1822,  for  an  account  of  all 
fees  of  office,  which  had  been  received  by  him  after  his  resignation, 
up  to  the  1st  July  1822,  and  defendant  rendered  an  account  accord- 
ingly ;  the  accountant-officers  had  no  right  to  include  in  the  settle- 
ment of  the  same,  the  amount  of  fees  which  were  received  in  the 
subsequent  year,  viz.  :  after  the  1st  October  1822. 

2.  That  the  settlement  of  the  account  of  defendant  as  made  by 
the  auditor-general  and  state  treasurer,  on  the  29th  April  1824,  is 
illegal  and  improper.  No  power  being  given,  by  law,  to  the  audi- 
tor-general to  call  upon  the  defendant  to  render  an  account  of  fees 
received,  during  the  year  that  would  end  on  the  1st  October  1822, 
until  after  the  expiration  of  this  year.  That  even  if  he  had  such 
power,  he  had  no  right  to  include  in  the  settlement  of  the  account, 
when  rendered,  any  sum  paid  to  the  defendant  by  his  successor  in 
office,  after  the  first  day  of  October  1822  ;  nor  had  he  a  right  to 
include  in  such  settlement,  fees  received  for  services  rendered, 
while  defendant  acted  as  prothonotary  of  the  District  Court  for  the 
city  and  county  of  Lancaster,  in  said  court. 

The  court  answered  these  points  in  the  negative;  when  a  verdict 
was  rendered  for  the  plaintiff',  which  the  defendant  moved  the  court 
to  set  aside,  and  grant  a  new  trial  for  the  following  reasons: 

1.  Because  the  court  erred,  in  rejecting  the  depositions  of  Chris- 
tian Bachman  and  John  Mathiot,  offered  in  evidence  on  behalf  of 
the  defendant. 

2.  Because  the  court  erred,  in  not  permitting  the  defendant  to 
plead  the  matters  as  contained  in  his  special  plea  this  day  filed. 

3.  Because  the  court  misdirected  the  jury,  in  their  charge  and 
answers  to  the  points  proposed  on  behalf  of  the  defendant. 

The  court  overruled  the  motion,  and  entered  judgment  on  the 
verdict ;  from  which  the  defendant  appealed. 

Montgomery,  for  appellant,  cited  the  act  for  erecting  the  con- 
troller-general's office:  2  Smith  L.  19:  Act  of  18th  February 
1785,  3  Carey  &  Bioren  9 — allowing  to  accountants  a  trial  by 
jury,  and  the  general  issue  to  be  pleaded;  Act  of  17th  March 
1809,  Penn.  Laws  71,  auditor-general  appointed  to  perform  the 
duties  of  the  controller-general;  Act  of  30th  March  1811.  Purd. 
Dig.  090,  directing  the  mode  of  settling  the  accounts  of  public  offi- 
cers. By  the  Act  of  Assembly  the  fiscal  year  commences  on  the 
1st  of  October,  and  the  officer  is  to  account  annually  :  the  fees  are 
not  due  to  the  Commonwealth  until  the  end  of  the  year.  The 
auditor-general,  having,  therefore,  called  upon  the  officer  to  account, 
and  an  account  having  been  furnished,  the  accountant-officers  had 
no  power  upon  the  settlement  of  that  account,  to  include  the  receipt 
of  F.  A.  Muhlenburg,  Esq.,  for  #308.32.  dated  2d  November  1822, 
not  within  that  fiscal  year  ;  and  they  include  it  too.  without  any 
notice  to  Mr.  Porter,  or  opportunity  to  contest  its  correctness. 


256  SUPREME  COURT  [Lancaster 

[Porter  v.  Commonwealth.] 

The  defendant  is  made  liable  to  account,  under  the  Act  of  1810, 
consequently  he  cannot  be  charged  with  fees  received  out  of  office ; 
that  could  be  done  only  under  the  Act  of  1818.  The  evidence  con- 
tained in  the  depositions  which  were  rejected,  was  strictly  admissi- 
ble under  the  general  issue :  4  Yeates  349;  2  Burr.  1019;  3  Id. 
1353;  5  S.  &  R.  390  ;  6  Id.  76  ;  11  Johns.  531 ;  13  Id.  56  ;  15 
Id.  230  ;  4  Yeates  366. 

Amendments  of  the  pleading  on  the  trial  are  mandatory,  and  not 
discretionary,  there  was  therefore  error  in  refusing  the  defendant 
permission  to  alter  his  pleas:  14  S.  &  R.  444;  6  Binn.  88;  4 
Yeates  507 ;  8  S.  &  R.  498 ;  10  Id.  192 ;  11  Id.  101 ;  16  Id. 
117  ;  5  Binn.  53 ;  8  S.  &  R.  286 ;  6  Id.  295. 

Dow/lass,  Attorney-General,  submitted  the  cause  for  the  state, 
without  argument. 

The  opinion  of  the  court  was  delivered  by 

GIH.-ON,  C.  J. — The  Act  of  the  30th  March  1811.  requires  an 
appeal  from  the  auditor-general,  to  be  accompanied  with  a  specifica- 
tion of  the  appellant's  exceptions,  and  doubtless  to  indicate  the 
very  points  to  be  determined  by  the  court.  As  there  is  no  reason 
to  appeal  in  respect  of  points  that  are  admitted,  it  would  be  fla- 
grantly unjust  to  permit  the  accountant  to  hold  in  reserve  anything 
that  might  have  been  allowed,  had  it  been  urged  at  the  settlement, 
and  thus  subject  the  Commonwealth  to  expense,  and  her  officers  to 
vexation,  without  just  cause.  The  exceptions  contained  in  the 
defendant's  specification  are  not  stated  with  precision,  but  they 
appear  to  be: 

1.  That  the  settlement  was  not  on  an  account  furnished.  This 
appears  not  to  have  been  pressed  at  the  trial. 

'2.   That  it  includes  a  period  of  more  than  one  year. 

3.  That  half  of  all  the  fees  received  in  the  whole  period  are 
charged,  instead  of  the  excess  above  31500,  in  any  one  fiscal  year. 

These,  therefore,  are  the  only  points  which  the  court  was  compe- 
tent to  hear  and  determine. 

At  the  trial,  the  defendant  offered  evidence  of  various  other  mat- 
ters, which  was  rejected  for  want  of  notice,  under  the  rule  which 
requires  a  specification  of  special  matters,  before  it  can  be  received, 
under  a  general  issue  pica,  on  which  he  prayed  for  leave  to  plead 
the  same  matters  specially,  which  was  refused.  It  is  unnecessary 
to  inquire  into  the  competency  of  these  matters,  on  either  of  the 
grounds  on  which  it  was  offered,  as  the  fact  that  it  is  not  included 
in  the  exceptions  taken  before  the  auditor-general,  furnishes  an 
insuperable  objection  to  it  on  any  ground.  Perhaps  the  only 
exception  legitimately  urged  at  the  trial,  is  that  the  account  em- 
braces a  period  of  considerably  more  than  a  year.  But  whatever 


May  1830.]  OF  PENNSYLVANIA.  257 

[Porter  v.  Commonwealth.] 

the  law  may  be  in  relation  to  the  accounts  of  persons  actually  in 
office,  the  Act  of  the  24th  March  1818,  requires  the  auditor-general 
to  settle  the  accounts  of  retired  or  displaced  officers  "  from  time  to 
time."  Why  the  case  of  the  defendant,  whose  appointment  to  the 
office,  was  subsequent  to  the  passing  of  this  act,  should  not  be  em- 
braced by  it,  we  are  at  a  loss  to  discover.  We  therefore  see  no 
reason  to  disturb  the  verdict. 

Judgment  affirmed. 

Followed,  9  H.  388  ;   16  Smith  67. 


Frantz  against  Brown. 

One  about  to  take  an  assignment  of  a  bond,  is  bound  to  hiquire  into 
every  circumstance  that  might  be  set  up  against  payment  of  any  part  of 
the  debt,  and  having  failed  to  do  so,  he  stands  exactly  in  the  place  of  the 
obligee. 

It  is  competent,  therefore,  for  an  obligor  to  set  up  as  a  defence  to  the 
payment  of  his  bond  in  the  hands  of  an  assignee,  a  parol  agreement  between 
him  and  the  obligee,  made  after  the  bond  was  executed,  but  before  it  was 
assigned,  that  in  a  certain  event,  which  might  and  did  happen  after  the  assign- 
ment, the  bond  was  not  to  be  paid. 

In  a  case  where  chancery  would  enjoin  an  obligee  in  a  bond  or  his  assignee 
from  proceeding  at  law,  while  the  obligor  remains  a  loser  or  in  jeopardy  as 
a  surety,  evidence  is  admissible  to  enable  the  jury  to  produce  the  same 
result  by  means  of  a  conditional  verdict. 

APPEAL,  by  the  defendant,  from  the  Circuit  Court  of  Lebanon 
county. 

An  action  of  debt  on  bond  was  brought  by  Jacob  Frantz  for  the 
use  of  John  Garbcrich,  against  Philip  Brown.  The  plaintiff  gave 
in  evidence  the  bond  of  Philip  Brown  to  Jacob  Frantz,  for  $800, 
upon  which  suit  was  brought,  dated  the  29th  March  1^10,  payable 
on  the  1st  of  May  1823,  with  the  equitable  assignment  thereon,  to 
John  Garbcrich,  dated  15th  April  1820.  The  defendant  then  read 
a  notice  of  the  special  matter  upon  which  he  intended  to  rely  as  a 
defence,  which  was  in  substance  this : 

That  on  the  10th  of  October  1818,  an  article  of  agreement  was 
entered  into  between  Frantz  and  Brown,  by  which  Frantz  sold  a 
tract  of  land  to  Brawn,  for  2200/.,  700^.  whereof  was  to  be  paid 
upon  the  execution  of  the  contract,  and  3(XV.  a  year  thereafter,  till 
the  whole  should  be  paid ;  that  bonds  were  given  by  Brown  to 

1  p.  &  W.— 17 


258  SUPREME  COURT  [Lancaster 

[Frantz  r.  Brown.] 

Frantz,  for  the  said  annual  payments,  upon  one  of  which  this  suit 
is  brought.  That  about  eight  days  after  the  bonds  were  executed 
and  delivered  to  Frantz,  he  bought  a  tract  of  land  and  mills  from 
Adam  Brechtbill,  for  §10,666.07 ;  $4266.67  of  which  he  paid  in 
hand,  and  agreed  to  give  sixteen  bonds,  with  security,  for  $400 
each,  payable  annually,  for  the  residue.  That  on  the  6th  April 
1819,  Frantz  called  on  Brown  to  become  his  security  in  the  sixteen 
bonds  to  Brechtbill  for  $400  cacl^  which  Brown  at  first  refused  to 
do ;  but  upon  its  being  agreed  by  Frantz  that  if  Brown  would  sign, 
as  his  security,  the  bonds  to  Brechtbill,  the  bonds  which  he,  Brown, 
had  given  to  Frantz  on  the  29th  March  1819,  for  the  land  pur- 
chased, should  be  his  security  ;  that  if  Brown  was  at  any  time  obliged 
to  pay  any  of  the  bonds  given  by  them  to  Brechtbill,  that  so  much 
should  be  deducted  out  of  his  bonds  to  Frantz,  and  that  Brown 
should  not  be  called  upon  to  pay  his  bonds  to  Fraiitv  until  Frantz 
had  paid  his  bonds  to  Brechtbill ;  on  these  conditions  Brown  signed 
the  bonds  as  security  of  Frantz  to  Brechtbill.  That  Frantz  became 
unable  to  pay  his  bonds  to  Brechtbill,  and  that  Brown  was  obliged 
to  pay  them,  and  had  paid  the  first  eight  bonds  in  full,  and  the 
ninth  in  part.  That  Frantz  became  insolvent  on  or  before  the  10th 
April  1821,  and  that  Brown  will  be  obliged  to  pay  all  the  bonds  to 
Brechtbill  as  they  become  due. 

The  defendant  having  given  in  evidence  the  agreement  between 
Frantz  and  Brechtbill,  as  mentioned  in  the  notice  of  special  matter, 
and  the  deed  in  pursuance  thereof,  dated  6th  April  1819,  offered 
in  evidence  three  bonds  of  the  same  date,  Jacob  Frantz  and  Philip 
Brown,  to  Adam  Brechtbill,  for  $400  each,  payable  on  the  1st  of 
May  1825,  1826  and  1827,  together  with  the  parol  agreement 
between  Frantz  and  Brown,  as  set  out  in  the  notice  of  special 
matter. 

This  was  objected  to  by  the  plaintiff,  who  in  support  of  his  ob- 
jection, showed  that  this  suit  was  brought  on  the  10th  November 
1824.  The  evidence  was  rejected  by  the  court. 

The  defendant  then  offered  in  evidence,  the  prior  bonds,  Jacob 
Frantz  and  Philip  Brown  to  Adam  Brechtbill,  four  in  number; 
the  first  payable  on  the  1st  day  of  May  1820,  and  last  on  the  1st 
day  of  May  1823.  Objected  to  by  the  plaintiff,  inasmuch  as  these 
bonds  had  been  credited  in  a  former  suit,  Jacob  Frantz,  for  the  use 
of  Philip  Stine  v.  Philip  Brown  ;  and  offered  a  credit  for  the 
amount  found  by  the  jury,  in  said  suit,  as  overpaid  by  the  defend- 
ant, to  wit :  $202.38  ;  the  defendant  then  agreed  that  the  former 
trial  shall  settle  the  amount  overpaid  on  the  first  three  bonds. 

The  defendant  then  offered  in  evidence  the  bond  of  Jacob  Frantz 
and  Philip  Brown  to  Adam  Brechtbill,  payable  on  the  1st  day  of  May 
1824,  with  proof,  that  it  was  paid  on  the  day  it  fell  due,  or  before ; 
objected  to  by  the  plaintiff,  on  the  ground,  that  notice  of  the  assign- 


May  1830.]  OF  PENNSYLVANIA.  2.59 

[Frantz  v.  Brown.] 

mcnt  of  the  bond,  upon  which  the  present  suit  is  brought,  was 
brought  home  to  Philip  Brown,  before  the  bond  offered  in  evidence 
became  due,  or  was  paid ;  arid  gave  in  evidence  a  suit  brought  by 
the  plaintiff,  against  the  defendant,  in  Dauphin  county,  to  recover 
the  amount  of  the  present  bond,  the  26th  day  of  January  1824, 
process  served  and  bail  given,  and  discontinued  on  the  Oth  day 
of  November  1824,  the  day  before  this  suit  was  brought.  Ob- 
jections overruled,  and  evidence  admitted ;  excepted  to  by  the 
plaintiff. 

John  Harrison  was  then  called  by  the  defendant.  I  was  one  of 
Jacob  Frantz's  assignees ;  assignee  deed,  dated  the  10th  day  of 
April  1821;  sold  his  goods  January  1822;  I  have  always  under- 
stood he  was  poor ;  we  were  not  able  to  pay  his  debts  ;  I  don't  know 
what  his  circumstances  were  in  1824. 

Jacob  Frantz  was  called  by  the  defendant :  I  did  not  pay  the 
bond  of  1824,  which  Brown  and  I  gave  to  Adam  Brechtbill ;  I  was 
not  able  to  pay  it  then,  nor  am  I  now. 

A  verdict  was  rendered  for  the  plaintiff  for  3351.58. 

The  plaintiff  prayed  the  court  to  grant  a  new  trial,  for  three 
reasons,  the  first  of  which  is  alone  material. 

Because  the  court  erred  in  receiving  in  evidence  the  bond  of 
Jacob  Frantz  and  Philip  Brown  to  Adam  Brechtbill,  dated  (5th 
April  1819,  for  $400,  payable  1st  May  1824.  and  in  deciding  that 
the  same  was  a  legal  defalcation  against  John  Garberich,  for  whose 
use  this  suit  was  brought. 

The  defendant  prayed  the  court  to  grant  a  new  trial,  and  assigned 
four  reasons  therefor,  all  of  which  amounted  to  but  one. 

Because  the  court  rejected  the  evidence  of  the  payment  of  the 
bonds  of  Frantz  and  Brown,  to  Brechtbill,  payable  1st  May  182"), 
1826,  1827,  1828,  and  part  of  the  one  of  1820,  together  with  parol 
evidence  of  the  agreement  between  Frantz  and  Brown  at  the  time 
they  were  executed. 

The  court  overruled  both  the  motion  of  the  plaintiff,  and  of  the 
defendant,  and  entered  judgment  upon  the  verdict,  from  which 
decision  both  parties  appealed. 

In  this  court  the  case  was  argued  by 

Montgomery  and  Norris,  for  plaintiff. 

Wt't'dman  and  JKUcr.  for  defendant. — For  the  plaintiff,  it  was 
contended,  that  the  court  was  right  in  rejecting  the  evidence  of  the 
parol  agreement  between  Frant/,  and  Brown  :  a  contract  cannot 
rest  partly  in  writing  and  partly  in  parol  :  such  evidence  was  rejected 
in  Davis  r.  Barr,  5>  8.  &  It.  141.  It  is  against  tho  legal  effect  of 
the  instrument ;  and  the  assignee  not  having  reason  to  suspect  its 
existence,  is  not  bound  to  inquire  for  it  from  the  obligor.  An  agree- 
ment not  to  enter  up  a  bond,  was  held  not  to  bind  even  the  original 


260  SUPREME  COURT  [Lancaster 

[Frantz  v.  Brown.] 

parties.  Undoubtedly  the  assignor  could  not  have  released  after  the 
assignment,  in  consideration  of  this  previous  liability ;  and  what 
cannot  be  done  directly,  cannot  be  done  indirectly  :  Andrews  v. 
Beeker,  1  Johns.  Cas.  411  ;  Littlefield  v.  Story,  3  Johns.  11.  425 ; 
Wardell  v.  Eden,  2  Johns.  Cas.  121 ;  Raymond  v.  Squire,  11  Johns. 
II.  47 ;  Bates  v.  New  York  Insurance  Co.,  3  Johns.  Cas.  238. 
Want  of  notice  to  the  assignee  is  material ;  for  after  that,  the  inter- 
est of  the  assignor  is  divested,  even  as  regards  the  obligor,  and  all 
relation  between  the  original  parties  ceases.  Nothing  but  defalca- 
tion or  an  equity  arising  out  of  the  concoction  of  the  debt  can  be 
urged  against  an  assignee :  Davis  v.  Barr,  9  S.  &  R.  141  ;  Turlin 
v.  Bonson,  1  P.  Wms.  495 ;  Cook  v.  Ambrose,  Addis.  323.  We 
are  purchasers  for  a  valuable  consideration,  without  notice  of  this 
germ  of  incipient  equity. 

There  was  error  in  admitting  the  evidence  of  set-off  of  the 
amount  of  the  bond  of  1824,  and  in  charging  the  jury  that  they 
were  bound  to  allow  it :  Jenkins  v.  Brewster,  14  Mass.  291 ;  Jones 
v.  Witter,  13  Id.  305. 

The  counsel  for  defendant  were  requested  by  the  court  to  confine 
their  argument  to  the  point  on  which  the  defendant  appealed. 

The  evidence  of  the  agreement  between  Frantz  and  Brown 
should  have  been  received  for  the  purpose  of  raising  an  equitable 
defence,  independent  of  defalcation  :  1  Madd.  Ch.  154.  An  assignee 
takes  subject  to  every  equity  :  Wheeler  v.  Hughes,  1  Dall.  23  ;  Run- 
die  v.  Ettwein,  2  Yeates  23;  Mann  v.  Dungan,  11  S.  &  II.  75. 
Every  defence  must  be  let  in  :  Solomon  v.  Kiminel,  5  Binn.  234  ; 
Bury  r.  Ilartman,  4  S.  &  II.  175 ;  Gochenaur  v.  Cooper,  8  Id.  203; 
Morrison  r.  More-land,  15  Id.  61 ;  Roasset  v.  The  Ins.  Co.  of  North 
America,  1  Binn.  433.  The  defalcation  act  expressly  authorizes 
the  giving  of  a  bargain  in  evidence,  to  show  the  amount  actually 
ami  equitably  due.  Here  there  is  certainly  an  available  equity  be- 
tween the  original  parties,  which  is  sanctioned  by  all  the  authorities, 
as  being  also  available  against  the  assignee. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — Evidence  of  the  agreement  between  Frantz  and 
Brown,  at  the  time  of  executing  their  bonds  to  Brechtbill,  was  ex- 
cluded against  the  bent  of  the  judge's  inclination,  on  the  authority 
of  Davis  v.  Barr,  !'  S.  &  R.  137,  by  which  he  thought  his  judg- 
ment was  controlled.  It  is  there  stated  that  as  regards  trans- 
actions between  the  original  parties,  the  assignee  is  to  be  affected 
only  by  defalcation  or  want  of  consideration  ;  a  construction  which 
is  found  to  be  too  narrow  for  the  spirit  of  the  act  on  which  the 
question  turns.  In  that  case  the  agreement  did  not  touch  the 
question  of  liability  ;  and  as  the  assignee  is  restrained  by  the  terms 
of  the  act,  no  further  than  from  recovering  more  than  was  due  at 
the  time  of  the  assignment,  it  was  properly  held  on  principles  of 


May  1830.J  OF  PENNSYLVANIA.  261 

[Frantz  v.  Brown.] 

general  equity,  that  being  a  purchaser  fur  a  valuable  consideration, 
he  is  protected,  by  want  of  notice,  from  all  acts  of  the  original  par- 
ties that  do  not  affect  either  the  existence  or  the  quantum  of  the 
debt.  But  it  was  supposed  that  all  acts  that  can  affect  the  exist- 
ence or  the  quantum  of  the  debt,  are  necessarily  referable  to  failure 
of  consideration  or  set-off,  the  fallacy  of  which  is  shown  by  the  pres- 
ent case.  The  defendant  offered  to  prove  that  he  became  surety  for 
Frantz  and  Brechtbill,  on  the  faith  and  assurance  that  whatever  he 
might  be  compelled  to  pay  in  consequence  should  be  credited  on  his 
own  bonds  to  Frantz.  Here  there  was  something  more  than  a  con- 
tingent liability  at  the  time  of  the  assignment ;  so  that  it  is  obvious 
the  question  turns  not  on  set-off,  but  an  equity  distinct  from  it.  Set- 
off  itself  was  originally  nothing  more  than  an  equitable  defence, 
which  the  legislature  has  thought  fit,  in  plain  and  simple  cases,  to 
subject  to  the  jurisdiction  of  the  courts  of  common  law,  reserving  to 
chancery  its  original  jurisdiction  of  cross  demands  which  do  not 
fall  within  the  statute.  That  such  a  statute  should  have  been 
thought  necessary  here,  where  the  jurisdiction  of  the  courts  is  com- 
pounded of  law  and  equity,  is  attributable  to  the  unsettled  state  of 
the  practice  at  the  time.  As  their  equitable  jurisdiction  is  now 
settled,  and  universally  understood,  the  courts  would  be  competent 
to  do  complete  justice  without  the  statute,  as  is  shown  by  their 
having  frequently  gone  beyond  it ;  an  instance  of  which  is  found  in 
Childerston  v.  Hammon,  It  S.  &  11.  t>8,  where  the  defendants  were 
permitted  to  defalcate  a  debt  due  to  one  of  them,  although  the  terms 
of  the  act  are  applicable  only  to  cases  where  a  balance  may  be  found 
in  favor  of  the  party  pleading  the  set-off,  and  viewing  such  a  plea  as 
a  cross-action,  it  certainly  ought  not  to  be  maintained  so  far  as  to 
produce  a  balance  by  two  for  a  debt  due  but  to  one.  Set-off,  then, 
being  out  of  the  question,  was  there  an  equity  arising  from  some- 
thing in  addition  to  a  contingent  liability  at  the  time  of  the  assign- 
ment ?  There  was  an  express  appropriation  of  the  money  to  become 
due  on  the  defendant's  bonds  to  indemnify  him  from  loss  as  surety 
for  Frantic,  which  might  undoubtedly  be  set  up  against  Frantz.  or 
an  assignee  having  notice  of  the  fact.  But  the  assignee  is  bound  to 
take  notice  of  everything,  as  well  a  secret  trust  as  want  of  consider- 
ation or  set-off,  which  may  affect  the  existence  of  the  debt  between 
the  original  parties,  unless  the  obligor,  after  inquiry  made,  has 
withheld  tin;  requisite  information.  What  would  have  been  the 
answer  to  the  proper  inquiry  here?  Certainly  not  that  the  bonds 
were  payable  at  all  events,  but  that  the  obligee  held  them  subject 
to  an  agreement  to  indemnify  the  obligor  for  whatever  he  should  be 
compelled  to  pay  for  the  obligee.  In  Davis  r.  Barr,  the  agreement 
being  collateral  to  the  existence  of  the  debt,  and  there  being  nothing 
in  the  inquiry,  which  the  assignee  was  bound  to  make,  to  lead  the 
obligor  to  the  subject,  the  latter  might  with  good  faith  have  admitted 
the  debt,  and  yet  been  silent  on  the  subject  of  the  agreement :  so 


262  SUPREME  COURT  [Lancaster 

[Frantz  r.  Brown.] 

that  an  inquiry  about  the  only  tiling  which  the  assignee  is  bound 
by  the  terms  of  the  Act  of  Assembly  to  suspect,  not  being  necessa- 
rily productive  of  information,  in  regard  to  the  fact  with  which  it 
was  attempted  to  affect  him,  it  was  held  that  for  neglecting  to  make 
the  usual  inquiry,  he  was  not  to  be  visited  with  notice  of  circum- 
stances to  which  it  would  not  have  led.  Perhaps  there  will  be 
rarely,  if  ever,  a  case  to  which  the  principle  of  that  decision  will  be 
applicable.  In  the  case  at  bar,  the  assignee  was  bound  to  inquire 
into  every  circumstance  that  might  be  set  up  against  payment  of 
any  part  of  the  debt,  and  having  failed  to  do  so,  he  stands  exactly 
in  the  place  of  the  obligee.  As,  therefore,  chancery  would  enjoin 
Frantz,  or  his  assignee,  from  proceeding  at  law,  while  the  defend- 
ant remains  a  loser,  or  in  jeopardy  as  a  surety,  the  evidence  is 
admissible  to  enable  a  jury  to  produce  the  same  result  by  means  of 
a  conditional  verdict. 

Judgment  reversed,  and  a  new  trial  awarded. 

ROGERS,  J.,  and  Ross,  J.,  took  no  part  in  the  decision,  not  hav- 
ing heard  the  argument. 

Commented  on,  2  W.  70 

Followed,  3  P.  &  W.  l'J3 ,  3  R.  204 ;  5  W.  &  S.  528 ;  10  Barr  157  ;  12  C. 
1 10. 


Imniel  uyahust  Stoever  ct  al 

The  trustee  of  an  insolvent  debtor  cannot  sustain  an  action  in  right  of  the 
insolvent  without  having  first  <:iven  bond. 

A  bond  executed  with  security  and  filed  upon  the  trial  of  the  cause  is  not 
sufficient. 

APPKAL  from  the  Circuit  Court  of  Lebanon  county,  held  by 
Justice  HILTON. 

It  was  an  action  of  assumpsit  for  money  had  and  received. 
Issues  were  joined  upon  the  pleas  of  non-assumpsit  and  payment. 

It  appeared,  upon  the  trial  of  the  cause,  that  Leonard  Immel,  the 
surviving  trustee  of  Frederick  Stoever,  an  insolvent  debtor,  had  not 
given  bond  for  the  faithful  discharge  of  the  duties  of  trustee,  before 
he  brought  this  suit  against  the  administrators  of  Tobias  Stoever, 
deceased.  This  being  made  an  objection  to  the  plaintiff's  recovery, 
Leonard  Immel  then  executed  a  bond,  with  sufficient  security,  in 
the  penalty  of  frJOJMM),  and  offered  to  file  the  same.  The  defend- 
ant still  contended  that  the  plaintiff  could  not  recover,  unless  he  bad 
given  bond  before  suit  brought ;  and  his  honor,  who  tried  the  cause, 


May  1830.]  OF  PENNSYLVANIA.  263 

[Imrael  ».  Stoever.] 

being  of  this  opinion,  the  plaintiff  suffered  a  nonsuit,  which  he 
afterwards  moved  the  court  to  take  oft',  which  being  refused,  he 
entered  an  appeal  to  this  court. 

Weidman  and  Fisher,  for  appellant. — The  application  arid  dis- 
charge of  Federick  Stoever,  as  an  insolvent  debtor,  were  under  the 
Acts  of  1730  and  1798,  the  latter  of  which  was  engrafted  on  the 
former ;  when  he  was  discharged  on  the  Gth  March  1<S09,  no  secu- 
rity was  ordered  by  the  court  to  be  given.  The  plaintiff  has  a 
legal  right  to  recover,  without  having  given  security,  for  the  estate 
passes  to  the  trustee  for  the  benefit  of  the  creditors,  immediately 
upon  the  execution  of  the  assignment;  and  if  so,  the  right  of  action 
is  inseparably  incident :  Willis  v.  How,  3  Yeates  520 ;  Cooper  r. 
Henderson,  G  Binn.  189 ;  Kennedy  v.  Ferris,  5  S.  <fc  R.  394 ; 
Gray  v.  Hill,  10  Id.  430.  The  bond  is  given  for  the  benefit  of  the 
creditors,  and  they  may  dispense  with  it :  Farmers'  Bank  of  Read- 
ing v.  Boyer,  10  S.  &  R.  48.  The  debtor  cannot  make  the  objec- 
tion :  5  Cranch  281 ;  G  Id.  329  ;  Wickersharn  v.  Nicholson,  14 
S.  &  R.  118.  The  Circuit  Court,  might  from  necessity  have  taken 
the  security,  whereby  justice  would  have  been  done  between  the 
parties,  and  the  creditors  of  Stoever,  relieved  from  all  risk. 

Elder  and  Hopkins,  for  the  appellees,  whom  the  court  declined 
to  hear. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — At  the  trial  of  this  cause,  in  the  Circuit  Court  of 
Lebanon  county,  held  in  March  last,  by  his  Honor  Justice  Huston, 
the  plaintiff  was  nonsuited,  principally  on  the  ground  that  he  had 
not  entered  into  the  bond,  required  by  the  insolvent  law  of  1798, 
before  he  instituted  tjie  action ;  which  nonsuit,  the  plaintiff  after- 
wards moved  the  court  to  set  aside.  That  motion  being  refused,  he 
entered  the  present  appeal.  The  Act  of  the  4th  of  April  1798  (to 
be  found  in  vol.  4  Pcnn.  Laws,  Dull,  ed.,  p.  2G9),  for  the  relief  of 
insolvent  debtors,  formed  of  itself,  a  complete  system.  It  provided 
for  the  discharge  of  all  insolvent  debtors,  in  term  time,  and  of  such 
as  were  arrested  in  execution,  in  vacation  ;  and  directed  that  every 
trustee  appointed  under  it,  should,  before  he  acted  as  such,  give 
bond  to  the  Commonwealth,  with  security,  in  such  penalty  as  the 
court  should  order,  &c.  It  expired  on  the  1st  of  May  1S01,  but 
it  was  revived  by  an  act  passed  the  2(5th  March  1M)S.  for  one 
year,  and  from  thence  to  the  end  of  the  next  session  of  the  general 
assembly. 

Frederick  Stoever,  on  the  31st  of  January  1809,  petitioned  the 
Court  of  Common  Pleas  of  Dauphin  county,  to  extend  the  benefits 
of  this  law  to  him,  and  on  the  (5th  March  ensuing,  was  accordingly 
discharged  by  that  court,  after  assigning  to  the  plaintiffs  all  his 


264  SUPREME  COURT  [Lancaster 

[Immel  r.  Stoever. 

estate,  in  trust,  for  the  benefit  of  his  creditors.  But  his  trustees 
did  not  enter  into  the  bond  required  by  the  third  section.  This 
suit  was  instituted  to  November  terra  1823.  The  question  to  be 
decided  is,  can  the  action  be  maintained  ?  It  is  manifest,  from  the 
proceedings  of  the  Court  of  Common  Pleas,  that  they  were  all 
founded  npon  the  Act  of  1798,  revived  by  the  Act  of  1808,  and 
not  upon  the  Act  of  1730.  The  legislature  then  has  therein  pre- 
scribed, that  the  trustees  shall,  before  they  act  as  such,  give  bond 
with  security,  <fec.,  without  complying  with  that  requisition,  the 
plaintiff  commenced  the  present  action.  It  is  to  no  purpose  that 
the  insolvent's  estate  vested  in  him,  as  he  contends,  by  the  assign- 
ment. The  law  expressly  restrains  him  from  doing  any  act  in 
relation  to  the  trust,  until  he  executes  the  bond  directed  to  be 
given  ;  nor  can  the  bond,  tendered  to  the  Circuit  Court,  be  regarded 
as  a  compliance  with  the  third  sect,  of  the  Act  of  1798,  for  the 
Circuit  Court  had  no  authority  to  determine  the  amount  of  the 
penalty,  or  approve  of  the  surety  in  the  bond ;  and  even  if  it 
possessed  such  authority,  and  had  received  and  approved  the  bond 
which  was  tendered,  the  plaintiff  would  not  have  been  aided ;  since 
every  suit  must  be  good  at  its  inception,  nor  can  the  want  of  a 
cause  of  action  be  supplied  by  a  subsequently  accruing  right.  The 
Act  of  Assembly  in  question  empowers  the  Court  of  Common  Pleas 
to  fix  the  sum  for  which  the  bond  should  be  given,  and  to  approve 
the  security.  The  plaintiff  must  look  to  this  law  for  his  guide  in 
the  proceedings  which  he  may  hereafter  adopt,  in  the  execution  of 
his  trust.  It  is  only  necessary  for  us  at  present  to  say,  that  we 
consider  the  decision  of  the  Circuit  Court,  from  which  he  has 
appealed,  as  perfectly  correct,  and  that  the  judgment  must  be 
affirmed. 

Judgment  affirmed. 

Affirmed,  2  W.  219. 


Gable  against  Hain. 

When  a  judgment  in  ejectment  was  entered  by  agreement  of  the  parties, 
to  be  rt'lfiiM-d  on  the  payment  of  a  certain  sum,  on  or  before  a  certain  day, 
time  i-  fif  the  e^erice  of  the  contract  :  and  if  the  money  be  not  paid  on  or 
before  the  day,  the  judgment  becomes  absolute  and  indefeasible. 

The  re.-eipt  of  the  money,  by  the  attorney  of  the  plaintiff,  after  the  day 
Htipulated  for  payment  without  the  knowledge  of  his  client,  will  not  prevent 
the  plaintiff  from  pursuing  his  judgment  to  execution,  and  obtaining  the 
of  the  land. 


WRIT  of  error  to  the  Common  Pleas  of  Jicr/rx  county. 

The  facts  of  this  case  were  "these:   Casper  Gable,  the  father  of 


May  1830.]  OF  PENNSYLVANIA.  265 

[Gable  v.  Hain.j 

the  plaintiffs,  sold  a  tract  of  land  to  William  Hain,  the  defendant, 
by  articles  of  agreement ;  a  part  of  the  purchase-money  was  to  be 
paid  at  a  future  day,  when  Gable  was  to  convey  to  I  Iain  the  land 
clear  of  encumbrances.  Gable  died  before  the  deed  was  made,  or 
purchase-money  tendered.  After  his  death,  his  administrators 
proved  the  contract,  and  an  order  was  made  by  the  Common  Pleas, 
granting  them  permission  to  make  a  deed  to  Hain.  After  the  pur- 
chase-money became  due,  the  deed  was  tendered  to  Hain,  and  the 
money  demanded,  which  was  not  paid.  The  present  plaintiffs, 
who  are  the  heirs-at-law  of  Casper  Gable,  deceased,  then  brought 
this  ejectment  to  compel  the  payment  of  the  balance  of  the  pur- 
chase-money. 

The  cause  being  ordered  on,  and  the  jury  sworn,  the  following 
agreement  was  entered  into  between  the  parties. 

"It  is  hereby  agreed  that  judgment  be  entered  in  the  above  suit 
in  favor  of  the  plaintiff  above-named,  for  the  land  and  tenements 
in  the  writ  and  declaration  mentioned,  to  be  released  and  vacated 
on  the  payment  of  the  sum  of  $212.40,  on  or  before  the  first  day 
of  March  next,  together  with  costs  of  suit,  otherwise  said  judgment 
to  stand  in  full  force  and  virtue.  Witness  our  hands  and  seal,  this 
16th  day  of  January  A.  D.  1829." 

On  the  27th  of  April  1829,  the  $212.40,  with  interest  from  the 
16th  of  January  1829,  and  all  the  costs  were  paid  to  Samuel  liaird, 
Esq.,  one  of  the  attorneys  of  the  plaintiffs,  in  the  absence  and  with- 
out the  knowledge  of  his  clients. 

Previously  to  17th  April  1829,  and  after  the  1st  March  1829, 
Gable's  heirs  considered  the  judgment  as  absolute,  and  had  adver- 
tised the  land  for  sale;  they  did  sell  the  land  on  the  2d  May  1829, 
to  John  Sohl.  After  this,  Leauenworth,  who  was  also  the  attorney 
with  Baird,  for  the  plaintiffs,  issued  a  habere  facias  possessionem 
and  fieri  facias  for  costs  ;  upon  which  the  sheriff  delivered  the  pos- 
session of  the  premises  to  the  plaintiffs.  On  the  8th  June  1829.  a 
rule  was  granted  by  the  court,  to  show  cause  why  the  habere  facias 
possessioncm  and  fi.  fa.  for  costs,  should  not  be  set  aside :  which 
was  subsequently  made  absolute,  and  restitution  was  awarded  to 
the  defendant.  Whereupon  this  writ  of  error  was  sued  out.  and 
the  opinion  of  the  court,  setting  aside  the  habere  facias  possessionem 
and  fieri  facias  for  costs,  and  awarding  restitution  to  the  defendant, 
was  assigned  as  error. 

Baird,  for  plaintiff  in  error. — Two  questions  are  involved.  1st. 
The  construction  of  the  agreement  as  to  the  materiality  of  time. 
2d.  The  validity  of  the  acts  of  counsel,  under  the  circumstances 
of  this  case. 

The  intention  of  the  parties  to  the  agreement  seems  manifest. 
Upon  the  trial  of  the  cause,  the  defendant  had  it  in  his  power  to 


266  SUPREME  COURT  [Lancaster 

[Gable  v.  Hain.] 

defeat  the  recovery  of  the  plaintiff,  by  the  payment  of  the  balance 
of  purchase-money  due,  interest  and  costs,  but  which  he  was  either 
unable  or  unwilling  to  do :  and  the  plaintiffs  are  about  to  realize 
their  rights  by  a  verdict  and  judgment,  when  a  compromise  as  to 
time  takes  place,  by  which  it  is  agreed  between  the  parties,  that  if 
the  money  i.s  not  paid  on  or  before  the  1st  of  March,  the  judgment 
then  entered  should  stand  in  full  force  and  virtue.  There  was 
nothing  but  time  to  compromise,  and  after  it  elapsed,  the  title  of 
plaintiff  became  absolute:  Hollirigsworth  v.  Fry,  4  Dall.  345.  It 
was  a  trick  upon  the  counsel  of  the  plaintiffs,  practised  after  the 
defendant  knew  that  the  plaintiffs  considered  their  title  as  re- 
vested. 

The  plaintiff's  title,  then,  having  become  absolute,  their  attorney, 
who  was  employed  only  to  prosecute  their  suit  to  judgment,  had  no 
power  to  part  with  that  title,  without  his  client's  express  consent: 
Huston  v.  Mitchell,  14  S.  &  R.  307 ;  7  Cranch  452 

Decki-rt,  for  defendant  in  error. — Time,  in  equity,  is  not  of  the 
essence  of  a  contract :  Amer.  Chan.  Dig.,  3  Bibb  366.  And  the 
object  of  the  action  being  to  compel  the  payment  of  the  balance  of 
the  purchase-money,  the  attorney  was  ex  officio  authorized  to  re- 
ceive it,  whereby  the  terms  of  the  contract  were  complied  with. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — We  think  it  clear,  that  time  was  of  the  essence  of 
the  contract ;  for  it  would  be  an  unreasonable  construction  of  the 
agreement,  that  the  defendant,  should  have  an  indefinite  period  of 
time  for  the  payment  of  the  money.  To  avoid  this  uncertainty, 
seems  to  have  been  the  object  of  the  compromise.  The  parties 
themselves,  have  fixed  a  reasonable  time  for  payment  of  the  pur- 
chase-money, which  it  was  the  object  of  the  suit  to  enforce.  And 
this  it  would  have  been  competent  for  the  jury  to  do,  and  is  an 
ordinary  operation  of  a  Court  of  Chancery,  on  a  bill  of  foreclosure. 
In  Ilollingsworth  v.  Fry,  4  Dall.  345,  a  case  not  stronger  than  the 
present,  the  time  of  payment  was  made  a  substantial,  and  not  a 
mere  formal  circumstance.  It  was  there  decided,  that  when  time 
enters  into  the  essence  of  a  contract,  it  must  be  observed.  In  sales 
by  private  agreement,  it  is  usual  to  fix  a  time  for  completing  a  con- 
tract, which  at  law  is  deemed  of  the  essence  of  the  contract.  But 
in  certain  cases  equity  will  earry  the  agreement  into  execution, 
notwithstanding  the  time  appointed  be  elapsed.  But  this  depends 
upon  the  peculiar  circumstances  of  the  case,  and  is  never  done, 
when  it  is  contrary  to  the  manifest  intention  of  the  contracting  par- 
ties. When  time  is  made  material,  it  is  as  binding  on  a  court  of 
equity  as  a  court  of  law.  If  this  be  the  correct  construction  of  the 
agreement,  on  the  1st  of  March  1<S^O,  Gable  became  re-vested 
with  the  absolute  title  to  the  land;  and  a  title  thus  acquired,  can- 


May  1830.]  OF  PENNSYLVANIA.  267 

[Gable  v.  Hain.] 

not  be  divested,  except  by  some  act  or  agreement,  on  some  express 
authority  from  the  principal.  If  the  plaintiff  had  accepted  the 
money  after  the  stipulated  time,  it  would  have  amounted  to  a 
waiver;  riot  so  with  respect  to  its  receipt  by  the  attorney,  whose 
power  only  extended  to  issuing  a  habere  facias,  to  obtain  the  fruits 
of  the  judgment.  Although  the  power  of  an  attorney  at  law  is 
more  extensive  in  Pennsylvania  than  in  England,  yet  he  cannot, 
without  express  authority  from  his  principal,  convert  his  client's 
money  into  land,  or  vice  versa,  as  was  decided  in  Huston  v.  Mitchell, 
14  S.  &  R.  307.  An  attorney  at  law  is  authorized  to  do  those 
things  which  pertain  to  the  conducting  a  suit,  but  has  no  power 
to  make  a  compromise,  by  which  land  is  to  be  taken,  instead  of 
money. 

Opinion  of  the  court  reversed,  and  re-restitution  awarded 
to  the  plaintiffs. 

Referred  to,  3  W.  &  S.  426;  5  Wr.  375  ;  8  Smith  198. 
Affirmed,  1  .loncs  30,  35,  but  a  change  in  practice  recommended. 
Affirmed  and  commented  on,  27  Smith  503  ;  s.  c.  1  W.  N.  C.  423. 
Followed,  7  Burr  1%  ;  8  C.  206. 


Hcilner  against  Bast  et  al. 

In  the  case  of  an  application  for  the  benefit  of  the  insolvent  laws,  the  de- 
cree of  the  court,  "  Proceedings  quashed  by  order  of  the  court,"  is  conclu- 
sive evidence  that  the  applicant  did  not  comply  with  the  terms  of  his  bond  ; 
and  the  cause  of  such  order  cannot  be  inquired  into  collaterally. 

It  is  the  duty  of  the  applicant  to  surrender  himself  to  prison  if  lie  fails  to 
comply  with  all  things  required  by  law  to  entitle  him  to  be  discharged. 

Qnin-f.  Whether  the  court  has  power  to  recommit  the  applicant,  except 
he  had  been  guilty  of  fraud. 

After  an  insolvent  bond  is  forfeited,  the  issuing  of  an  ah.  ra.  sa.  by  the 
same  plaintiil',  upon  which  the  insolvent  gave  another  bond,  and  was  subse- 
quently discharged  by  law,  is  not  a  waiver  of  his  right  of  action  upon  the 
first  bond. 

WRIT  of  error  to  the  Common  Pleas  of  Ih>rks  county. 

This  was  an  action  of  debt  upon  aii  insolvent  bond,  brought  by 
Samuel  Ileilner,  for  the  use  of  Freytag  and  Kampman,  against 
Jacob  Bast,  John  Wanner  and  Samuel  Fegelly. 

The  bond,  dated  1st  July  18:25,  was  in  the  penalty  of  S'JOOO, 
with  the  following  condition  annexed  :  "  Whereas,  the  above 
bounden  Jacob  Bast  hath  been  arrested,  and  is  now  in  arrest,  at 
the  suit  of  the  said  Samuel  Ileilner,  for  the  use  of  Freytag  and 
Kampman,  for  the  sum  of  $1003.57,  besides  costs:  and  the  said 
Jacob  Hast,  having  made  application  to  the  Honorable  Jacob 
Schneider,  one  of  the  judges  of  the  Court  of  Common  Picas  of  the 
county  of  Berks,  to  be  released  from  such  confinement,  on  his 


268  SUPREME  COURT  [Lanwter 

[Heilncr  r.  Bast.] 

entering  into  bond  with  sufficient  security  to  comply  with  the  pro- 
visions of  the  Act  of  the  General  Assembly  of  the  Commonwealth 
of  Pennsylvania,  passed  the  21>th  day  of  January,  A.  D.  1820, 
entitled  '  A  supplement  to  the  act  entitled  an  act  for  the  relief  of 
insolvent  debtors,'  and  the  said  Jacob  Schneider  having  approved 
of  the  above-named  John  Wanner  and  -Samuel  Fegelly,  security 
for  the  said  Jacob  Bast. 

"Now  the  condition  of  the  above  obligation  is  such,  that  if  the 
said  Jacob  Bast  shall  appear  before  the  honorable  the  judges  of  the 
Court  of  Common  Pleas  for  the  county  of  Berks,  at  the  next  term 
of  said  court,  to  be  holden  on  the  first  Monday  of  August,  A.  D. 
lS2o,  and  then  and  there  remain,  and  abide  the  final  order  of  the 
said  court,  to  be  made  during  the  said  term,  and  then  and  there 
surrender  himself  to  prison  ;  in  case  (on  his  appearance  before  the 
said  court)  he  shall  not  comply  with  all  things  required  by  law,  to 
procure  his  discharge  from  confinement,  then  the  above  obligation 
to  be  void,  otherwise  to  remain  in  full  force  and  virtue." 

After  the  plaintiff  had  given  in  evidence  this  bond  and  rested, 
the  defendants  gave  in  evidence  the  capias  ad  satisfaciendum,  at 
the  suit  of  the  said  Samuel  Heilner.  for  the  use  of  Freytag  and 
Kauipman  v.  Jacob  Bast,  upon  which  the  defendant  had  been  taken, 
and  had  given  this  bond,  and  the  sheriff's  return  thereon  "  dis- 
charged on  giving  bond." 

They  then  showed  the  petition  of  Jacob  Bast,  regularly  presented 
at  the  next  term,  according  to  the  condition  of  his  bond,  the  order 
of  the  court  thereupon,  appointing  a  day  for  hearing  the  petitioner 
and  his  creditors  ;  the  notice  to  creditors  published  according  to  the 
order  of  the  court,  and  exhibited  the  record  of  the  court,  showing 
that  the  said  Jacob  Bast,  together  with  ten  others,  who  were  to 
appear  at  the  same  time,  had  regularly  appeared  on  the  day  and  at 
the  time  fixed,  when  the  court,  for  reasons  which  did  not  appear 
upon  the  record,  made  the  following  order : 

"The  proceedings  quashed  by  order  of  the  court." 

The  defendants  further  gave  evidence  that  afterwards,  to  wit,  to 
January  term  1H2«J.  an  <ili<i*  <-apius  ad  satisfaciendum,  issued  at 
the  suit  of  the  same  plaintiffs  against  the  same  defendant,  upon 
which  the  sheriff  returned  ""tardc  vault;"  that  a  jiluri'x  cabins 
issued  to  the  next  term,  upon  which  the  said  Jacob  Bast  was  taken, 
and  gave  another  insolvent  bond,  with  John  Wanner  as  his  security  ; 
that,  in  discharge  of  this  bond,  Jacob  Bast  appeared  at  the  next 
court,  filed  his  petition,  and  was  afterwards  regularly  discharged, 
under  the  insolvent  laws,  on  the  Sth  August  1*20. 

To  all  which  evidence  the  plaintiffs  demurred,  and  the  defend- 
ant" joined  in  the  demurrer. 

The  Court  of  Common  Pleas  gave  judgment  for  the  defendants. 

Smith,  for  plaintiffs  in  error. — The  questions  presented  are :  la 


Jfay  1830.]  OF  PENNSYLVANIA.  269 

[Heilner  v.  Bust.] 

the  bond  upon  which  the  suit  is  brought  so  formal  as  tnat  the 
plaintiffs  may  recover  upon  it ;  have  its  conditions  been  complied 
with  ;  and  if  not,  have  the  plaintiffs  done  anything  which  amounts 
to  a  waiver  of  the  right  to  recover? 

It  has  already  been  decided,  that  this  bond  is  a  substantial  com- 
pliance with  the  Act  of  Assembly,  and  valid  :  The  Farmers'  Bank 
of  Heading  v.  Boyer,  10  S.  &  R.  48.  The  petitioner  did  not  com- 
ply with  all  things  necessary  to  procure  his  discharge,  for  the  pro- 
ceedings were  quashed  by  a  decree  of  the  court,  and  that  decree  is 
conclusive,  and  cannot  be  controverted  :  Sheets  v.  Hawk  et  al.,  14 
S.  &  II.  173 ;  Lester  v.  Thompson,  1  Johns.  300 ;  Leese  v.  Asper, 
MS.,  decided  at  Chambersburg,  1828.  It  is  not  necessary  that 
there  should  be  an  order  of  the  court  for  the  delivery  of  the  insol- 
vent into  prison  :  Act  of  1820  ;  Ingraham  on  Insol.  14-lo.  The 
issuing  of  the  alias  arid  pluries  ca.  sa.  operated  for  the  benefit  of 
the  sureties,  and  they  cannot  complain  of  it :  Ingraharn  on  Insol. 
29  ;  Sharpe  v.  Speckcnagle,  3  S.  &  R.  4G3.  At  all  events  the 
second  proceeding  by  the  plaintiffs,  was  the  obtaining  of  an  additional 
security,  and  the  circumstance  of  one  of  the  same  sureties  going 
into  the  second  bond,  the  plaintiffs  had  no  control  over ;  nor  does 
it  alter  the  nature  of  the  case. 

Deckert  and  BiJdle,  for  defendants  in  error. — This  insolvent 
with  all  the  others  at  that  term,  were  refused  their  discharge,  ex- 
clusively on  the  ground  that  their  bonds  were  defective ;  and  the 
present  plaintiffs  acquiesced  in  this  opinion  for  two  years  before  they 
brought  suit.  .This  is  an  ungracious  claim.  The  insolvent  has 
substantially  complied  with  the  condition  of  the  bond,  by  appear- 
ing and  submitting  to  the  order  of  the  court,  who  quashed  all  the 
proceedings  included  in  the  bond.  If  the  court  erred,  that  error 
should  not  now  be  visited  upon  the  heads  of  innocent  bail ;  particu- 
larly as  the  insolvent  was  within  a  reasonable  time  thereafter  dis- 
charged upon  another  petition,  when  arrested  at  the  suit  of  the 
same  plaintiffs.  If  the  second  bond  was  an  additional  security  it 
was  discharged  and  satisfied  by  the  final  discharge  of  the  insolvent, 
and  any  one  of  the  securities  being  discharged,  was  a  discharge  of 
all. 

Baird,  in  reply. — This  is  a  demurrer  to  evidence  which  is  upon 
the  record,  and  upon  that  alone  this  court  must  decide,  \\l\\  the 
insolvent  was  not  discharged,  does  not  appear;  nor  could  it  appear 
if  it  had  been  offered  in  evidence.  The  court  had  no  power  to 
quash  the  bond  ;  to  destroy  a  subsisting  contract  between  the  in- 
solvent and  his  creditors.  The  only  question  then  is,  did  the  sub- 
sequently issuing  the  alias  and  pluries  ca.  sa.  waive  the  first  bond? 
There  is  no  express  waiver,  and  certainly  it  cannot  bo  so  by  con- 


270  SUPREME  COURT  [Lancaster 

[Hcilner  v.  Bast.] 

struction  ;  for  the  bail  were  not  prejudiced  by  it.  The  pursuit  of 
the  original  debtor  by  due  process  of  law,  can  never  exonerate  his 
bail. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — Jacob  Bast,  being  in  the  actual  custody  of  the  sheriff' 
of  Berks  county,  gave  bond  to  the  plaintiffs,  at  whose  suit  he  was 
arrested,  with  the  sureties  required,  and  regularly  approved  of  by  a 
judge  at  his  chamber,  whereupon,  in  compliance  with  the  Act  of  the 
ii*th  March  18:20,  he  was  discharged  from  arrest.    The  bond,  which 
is  in  accordance  with  the  act,  (Farmers'  Bank  of  Reading  v.  Boyer, 
lt>  8.  «fc  R.  48),  has  the  following  condition  underwritten,  that  Jacob 
Bast  will  appear,  £c.,  before  the  Court  of  Common  Pleas  of  Berks 
county,  at  the  next  term,  £c.,  and  then  and  there  surrender  him- 
self to  prison,  in  case,  on  his  appearance,  he  shall  not  comply  with 
all  things  required  by  law  to  procure  his  discharge.     Bast  filed  his 
petition  in  due  form,  and  in  the  other  preparatory  steps  complied 
with  the  directions  of  the  act,  and  the  court  appointed  a  time  for 
hearing  him  and  his  creditors,  but  for  a  reason,  which  is  not  stated, 
and  if  it  were,  would  be  immaterial,  they  refused  to  discharge  him, 
and  made  the  following  entry  :   "Proceedings  quashed  by  order  of 
the  court."     From  this  entry,  which  is  the  only  one  on  the  record, 
it  appears  that  Bast  failed  to  -comply  with  all  tilings  required  by 
law  to  procure  his  discharge.     Being  the  decree  of  a  court  of  com- 
petent jurisdiction,  it  is  immaterial  what  may  have  induced  the  de- 
cision, for  if,  as  was  ruled,  in  Sheets  v.  Hawk  et  al.,  14  S.   &   R. 
173,  the  record  of  the  discharge  of  an  insolvent  debtor  is  conclu- 
sive, as  to  the  fact  of  having  complied  with  all  things  required  by 
law  to  entitle  him  to  his  discharge,  then  the  refusal  to  discharge  him 
must  be  equally   conclusive,  and  not  the  subject  of  inquiry  in  a 
collateral  suit.     The  record  conclusively  shows  that  Bast  was  not 
discharged,  and  is  evidence  which  cannot  be   controverted,  that  a 
substantial  condition  of  the  bond  has  not  been  complied  with.    The 
entry,   "proceedings   quashed   by   order  of  the   court,"  was  tanta- 
mount to  a  decree  that  he  had  failed   to  comply  with  some  of  the 
essential  requisitions  of  the  statute,  and  whether  the  opinion  of  the 
court  was  right  or  wrong,  is  not  open  to  inquiry.     On  the  refusal 
of  the  court  to  discharge  the  petitioner,  it  was  his  duty  to  surrender 
himself  to  prison    in   discharge   of  his   bail,  and  this  without  any 
order  of  the  court  for  that  purpose.     It  is  the  express  condition  of 
the  bond,  that  he  will  surrender  himself,  in  case  he  shall  not  com- 
ply with  all    things    required    by  law    to    procure   his    discharge. 
Indeed,  it  may  admit  of  doubt,  whether  the  court  would  have  power 
to  recommit  the  prisoner,  except  he  had  been  guilty  of  fraud.   After 
the  rejection  of  his  application  for  the  benefit  of  the  act,  he  had  one 
of  two  courses  to  pursue,  either  to  surrender  himself  to  prison,  or 
forfeit  his  bond.     This  was  a  matter  for  himself  to  determine,  but  a 


May  1830.]  OF  PENNSYLVANIA.  271 

[Hcilncrp.  Bast.] 

case  may  be  readily  supposed  where  the  petitioner  would  rather  sub- 
mit to  the  latter  alternative. 

It  has  been  contended  that  by  the  entry,  "Proceedings  quashed, 
by  order  of  the  court,"  the  bond  was  vacated.  We  cannot  suppose 
this  to  have  been  the  intention  of  the  court,  as  they  would  clearly 
have  no  such  power ;  and  if  they  had  expressly  vacated  the  bond, 
such  an  order  would  have  been  a  mere  nullity,  and  treated  as  such 
in  a  suit  to  recover  on  it.  The  bond  is  directed  by  the  act  to  be 
given  to  the  plaintiff,  at  whose  suit  he  is  arrested,  and  for  his  bene- 
fit, so  that  I  cannot  believe  that  the  court  would  have  greater  power 
than  in  the  case  of  an  ordinary  bond,  or  any  other  instrument  of 
writing  whatever.  The  common  law  does  not  recognise  such  sum- 
mary proceedings,  which  would  deprive  the  plaintiff  of  his  remedy 
of  trial  by  jury,  and  the  opportunity  of  review  in  the  Supreme 
Court.  But  it  has  been  contended,  that  the  alias  ca.  sa.  and  the 
subsequent  discharge  waives  any  right  of  action  which  he  might 
otherwise  have  on  the  bond.  This  argument  is  rather  specious  than 
solid,  for  the  alias  is  not  in  prejudice,  but  for  the  benefit  of  the  bail. 
It  is  obviously  to  their  advantage  to  pursue  the  principal,  and 
compel  him  to  assign  his  property  for  the  benefit  of  his  creditors. 
Judgment  reversed,  and  a  venire  de  novo  awarded. 

Followed,  2  Barr  61. 


Betz's  Appeal. 

The  issuing  of  a  fieri  facias  within  a  year  and  a  day,  and  a  levy  upon 
personal  property,  subject  to  former  levies,  or  on  personal  property  as  per 
inventory  annexed,  or  a  return  of  nitlln  bona,  does  not  keep  alive  the  lien  of 
a  judgment  beyond  five  years,  from  the  return-day  of  the  term  to  which  it 
is  entered. 

Upon  a  transcript  of  the  judgment  of  a  justice  the  peace,  entered  as  a  lien 
upon  land,  the  five  years  within  which  a  scire  faeias  shall  issue,  to  preserve 
the  lien,  must  be  computed  from  the  first  day  of  the  term  to  which  it  is  entered, 
and  not  from  the  actual  date  of  the  entry. 

THIS  case  came  up  by  appeal  from  the  decree  of  the  Court  of 
Common  Pleas  of  Berks  county,  distributing  the  proceeds  of  the 
sale  by  the  sheriff,  of  the  real  estate  of  Samuel  Krauser,  Adam 
Krauser  and  Daniel  Krauser. 

The  real  estate  was  sold  on  the  2d  November  18'2!\  and  the  sum 
of  $2f)07.37,  being  brought  into  court  for  distribution,  the  matter 
was  referred,  by  consent,  to  three  commissioners,  who  made  a  report 
to  the  court,  allowing  the  following  judgments,  the  circumstances 
of  which  gave  rise  to  the  points  which  are  settled  by  this  court 


272  SUPREME  COURT  [Lancaster 

[Betz's  Appeal.] 

Jacob  K.  Boyer,  for  the  use  of  "1  Of  August  term  1821,  No. 
Henry  Betz,  I  47.  Judgment  entered,  18tb 

v.  [  September  18:21.  Real  debt, 

John  Krauser  and  Samuel  Krauser.  J  $280.31. 

Fi.  fa.  to  August  term  1822,  returned  "  Levied  on  personal  pro- 
perty subject  to  prior  executions,"  vend,  expos,  to  January  1823, 
returned  "unsold."  Fi.  fa.  post.  vend,  expos,  to  April  term  1827, 
returned  "  tarde  venit."  April  14th  1827,  rule  to  show  cause  why 
the  execution  should  not  be  set  aside,  and  defendants  let  into  a 
defence,  May  18th  1827,  rule  made  absolute,  judgment  to  remain 
as  security.  Scire  facias  to  August  term  1827,  and  1st  June  1829, 
judgment  by  report  of  arbitrators,  for  $429.14. 

Same  plaintiffs  ^  Of  April  term  1822,  No.  89.  Judgment 
v.  >  entered,  8th  February  1822.  Real  debt, 

Same  defendants,      j      $153.33. 

Alike  proceedings  were  had  upon  this  judgment  as  the  first ;  the 
same  returns  were  made  thereto ;  the  same  rule  entered ;  scire 
facias  issued  the  same  time,  and  on  the  1st  June  1829,  judgment 
by  report  of  arbitrators,  for  $236.11.  To  the  allowance  of  these 
two  judgments  by  the  commissioners,  the  following  exceptions  were 
filed  in  the  Common  Pleas,  by  Jacob  Hawk,  a  subsequent  judg- 
ment-creditor : — 

1st.  That  the  executions  issued  upon  the  said  judgments  were 
levied  upon  personal  property,  sufficient  to  satisfy  the  same. 

2d.  Because  said  judgments  were  not  revived  agreeably  to  the 
Act  of  Assemby,  or  the  lien  continued  beyond  five  years,  from 
the  first  return-day  of  August  term  1821,  under  the  then  existing 
laws. 

The  Court  of  Common  Pleas  overruled  the  first  exception,  and 
sustained  the  second,  from  which  Henry  Betz  appealed. 

Mills  and  Reose          }  Of  January  term  1823,  No.  10.  Tran- 
v.  >    script  of  a  judgment  from  the  docket 

John  and  Samuel  Krauser.  J    of  a  justice,  for  $66.48. 

Entered,  llth  January  1823. 

Scire  facias  issued  7th  January  1828,  to  April  term  1828,  upon 
which  judgment  was  entered. 

There  was  another  transcript  of  a  judgment  at  the  suit  of  the 
same  plaintiffs,  against  the  same  defendants,  entered  at  the  same 
time,  and  depending  upon  the  same  circumstances.     To  the  allow- 
ance of  these  two  judgments,  Jacob  Hawk  also  filed  an  exception. 
That  the  said  judgments  were  not  liens  on  the  real  estate  sold, 
they  not  having  been  revived  within  five  years  from  the  first  return- 
day  of  January  term  1823,  agreeably  to  the  Act  of  Assembly. 
The  Gth  January  was  the  return-day  of  January  term  1823. 


May  1830.]  OF  PENNSYLVANIA.  273 

[Bctz's  Appeal.] 

This  exception  was  sustained  by  the  Court  of  Common  Pleas, 
and  Lewis  Rees  appealed. 

Joseph  Hiester,  Esq.,  ]  Of  November  term  1823,  No. 

v.  >      112.     Judgment  entered 

Adam,  Samuel  and  John  Krauser.  )  10th  Nov.  1823,  for  $400. 
Fi.  fa.  to  January  term  1824,  returned  "  levied  on  personal  pro- 
perty, as  per  inventory  annexed."  Vend,  expos,  to  April  term 
1824,  returned*"  stayed  by  plaintiff."  Als.  vend,  expos,  to  August 
term  1824,  returned  "property  sold  to  the  amount  of  $69.39,"  and 
this  amount  has  been  deducted  from  the  interest  and  costs  in  the 
above  case.  Scire  facias  issued  to  January  term  1829.  Exception 
was  also  filed  by  Jacob  Hawk  to  the  allowance  of  this  judgment. 

That  the  same  had  not  been  revived  by  scire  facias  within  five 
years  from  the  return-day  of  the  term  to  which  it  was  entered. 

This  exception  was  also  sustained  by  the  Court  of  Common  Pleas, 
and  Joseph  lliester,  Esq.,  appealed. 

Michael  Raefsnyder,  Isaac  M.  ^ 

Young  and  Jacob  Fritz,        j  Of  January  term   1824,  No.  10. 
v.  >      Judgment  entered  January  12th 

Samuel,  John  and  Adam  1824,  for  §367.73. 

Krauser.  J 

Fi.  fa.  to  November  term  1824,  returned  "nulla  bona." 

Jacob  Hawk  j  Of  January  term  1824,  No.  11. 

v.  >  Judgment  entered  12th  Jan- 

Samuel,  John  and  Adam  Krauser.  )  uary  1824,  for  $1560. 

Fi.  fa.  to  January  term  1824,  levied  on  real  estate,  inquisition 
held,  and  the  same  condemned.  Scire  facias  to  January  term  1829, 
and  judgment  thereon. 

The  commissioners  reported  that  a  balance  of  $591.85,  which 
remained  after  the  payment  of  prior  liens,  should  be  divided  ratea- 
bly  between  these  two  judgments. 

To  which  Jacob  Hawk  excepted,  that  his  judgment  should  be 
paid  before  any  money  should  be  appropriated  to  the  judgment  of 
llaefsnyder,  Young  and  Fritz,  which  had  lost  its  lien. 

This  exception  was  sustained  by  the  Court  of  Common  Pleas, 
and  Raefsnyder,  Young  and  Fritz  appealed. 

In  this  court  the  appellants  assigned  as  error,  the  opinion  of  the 
court  in  the  several  foregoing  decrees. 

Baird,  for  appellants. — There  are  two  questions  which  arise  out 
of  this  case.  First,  whether  the  issuing  of  a  fi.  fa.  within  a  year 
after  the  entry  of  the  judgment  will  keep  alive  its  lien  beyond  the 
period  of  five  years. 

And  second,  whether  upon  a  transcript  of  a  judgment  from  the 
docket  of  a  justice,  the  five  years  shall  be  computed  from  the  first 

1  p.  &  W.— 18 


274  SUPREME  COURT  [Lancaster 

[Betz's  Appeal.] 

day  of  the  term  to  which  the  judgment  was  entered,  or  from  the 
actual  dato  of  its  entry  upon  the  docket. 

The  affirmance  of  the  opinion  of  the  court  below,  on  the  first 
point,  will  establish  a  doctrine  differing  from  the  received  opinion 
of  the  bar,  and  uniform  practice  of  all  the  courts  in  Pennsylvania, 
and  which  grew  out  of  the  judicial  decisions  of  our  own  courts. 
The  question  first  came  before  the  court  in  the  case  of  Young  v. 
Taylor,  2  Binn.  218,  where  it  was  ably  argued,  and  received  the 
deliberate  consideration  of  the  court,  and  where  it  was  held  that  the 
issuing  of  a  fi.  fa.  would  keep  alive  the  lien  of  a  judgment.  The 
next  case  is  that  of  Lewis  v.  Smith,  2  S.  £  R.  142,  where  the  same 
doctrine  is  held,  and  predicated  upon  the  construction  which  prac- 
tice had  given  to  the  statute  of  Westminster  II.,  and  our  own 
statute  of  the  4th  April  171KS.  In  the  case  of  Pennock  v.  Hart,  8 
S.  &  R.  30'J,  Young  r.  Taylor  is  approved ;  and  in  Commonwealth 
v.  McKisson,  13  S.  &  R.  144,  the  whole  scope  of  the  argument  of 
Duncan,  Justice,  recognises  the  cases  of  Young  v.  Taylor  and  Pen- 
nock  r.  Hart,  as  being  sound  law.  The  qucere  which  is  put  in  the 
case  of  Pennock  v.  McKisson,  is  the  qucere  of  the  reporters, 
and  not  authorized  by  the  case  itself;  in  the  argument  of  that  case 
by  Mr.  Hepburn,  who  is  a  member  of  the  bar  of  great  experience 
and  learning,  and  whose  opinion  in  matters  of  practice  will  have 
weight,  this  position  which  we  contend  for  is  admitted.  The  case 
now  at  bar  is  a  strong  illustration  of  what  we  considered  the  settled 
law  to  be.  In  the  Act  of  the  26th  March  1827,  Paraph.  L.  129, 
we  have  the  understanding  of  the  legislature  of  what  the  practice 
was,  for  therein  they  provide  that  a  scire  facias  shall  issue,  notwith- 
standing an  execution  had  issued.  If,  then,  on  this  subject,  the 
understanding  and  practice  have  been  uniform  and  extensive,  the 
evils  of  a  different  construction  would  be  innumerable;  this  result 
the  court  will  not  produce,  unless  the  evils  of  the  present  system 
are  correspondingly  great. 

When  the  Act  of  1798  was  passed,  the  legislature  had  in  view 
the  practice  of  entering  judgments  upon  warrants  of  attorney,  and 
did  not  contemplate  the  case  of  transcripts,  which,  at  the  passage  of 
that  law.  there  was  no  authority  to  enter  on  the  county  docket. 
Hut  the  20th  section  of  the  Act  of  20th  March  1810,  Purd.  Dig. 
454,  which  authorizes  the  entry  of  a  transcript,  provides  that  from 
the  time  of  such  entry,  it  shall  bind  the  real  estate  of  the  defendant. 

JL  W.  Smith,  for  the  appellee. — Prior  to  the  Act  of  4th  April 
170H,  judgments  were  a  lien  on  real  estate  for  an  indefinite  period; 
by  that  act  it  ceases  to  be  a  lien,  unless  revived  by  a  scire  facias, 
within  five  years  from  the  return-day  of  the  term  to  which  it  is 
entered.  This  act  is  as  clear  and  comprehensive  as  it  is  positive  in 
ita  terms;  it  was  evidently  intended  for  the  benefit  of  purchasers,  and 


May  1830.]  OF  PENNSYLVANIA.  275 

[Beta's  Appeal.] 

subsequent  lien-creditors.  The  scire  facias,  post  annum  ct  diem,  is 
given  by  the  Statute  of  West.  II.,  and  is  intended  for  the  benefit  of 
the  defendant  in  the  judgment,  that  he  may  have  an  opportunity 
of  showing  that  the  debts  have  been  paid  since  the  rendition  of  the 
judgment,  so  that  there  is  no  analogy  between  the  two  acts ;  the 
decisions  that  have  taken  place  under  the  one  cannot  be  applied  to 
the  other. 

The  point  now  before  the  court  did  not  arise  in  the  case  of  Young 
v.  Taylor ;  there  there  was  no  levy  on  personal  property,  the  levy 
was  on  the  two  lots  against  which  the  lien  was  sought  to  be  enforced, 
but  further  proceedings  were  directed  to  bring  the  matter  before  the 
court.  So  far  as  this  point  was  noticed,  it  was  only  by  a  dictum  of 
Judge  Ycates,  which  was  not  called  for,  and  which,  as  is  Said  by 
Senator  Platt  in  9  Johns.  11.  415,  and  Huston,  J.,  in  17  S.  &  K. 
292,  and  Gibson,  C.  J.,  in  7  S.  &  R.  76,  is  always  uncertain  author- 
ity for  what  the  law  is.  There  is  a  dictum  of  Judge  Duncan  in  9 
S.  &  R.  311,  that  the  mortgagee  has  the  right  to  the  actual  posses- 
sion of  the  land,  one  year  after  the  last  \\iiy  of  payment,  but  when 
the  point  carne  directly  before  the  court  in  12  S.  &  R.  340,  it  was 
decided  that  the  mortgagee  was  entitled  to  recover  before  all  the 
payments  were  due.  But  since  the  case  of  Young  v.  Taylor  this 
court  decided  that  so  far  as  respects  third  persons,  a  levy  on  per- 
sonal property  discharges  the  lien  of  the  judgment  to  the  value  of 
the  property  levied:  Hunt  v.  Breading,  12  S.  &  R.  37;  Dean  ;-. 
Patton,  13  Id.  341 ;  Duncan  v.  Harris,  17  Id.  43(5 ;  United  States 
v.  Stewart,  MS.  case,  Pittsburgh,  September  1828.  In  Lewis  r. 
Smith,  the  levy  was  on  personal  property,  there  was  no  question 
of  lien  as  to  land.  If  an  execution  be  issued  within  a  year  and  a 
day,  an  alias  may  issue  at  any  time  afterwards,  without  a  scire 
facias,  to  obtain  satisfaction  of  the  debt,  but  not  to  continue  the  lien 
of  the  judgment  ;  the  existence  of  the  debt  and  its  lien  are  not  in- 
separable; the  lien  may  be  waived  and  the  debt  still  continue:  The 
Bank  of  Pennsylvania  r.  Winger,  1  Rawle  295. 

The  case  of  Pennock  v.  Hart  has  been  much  shaken  in  its  author- 
ity, even  by  the  present  chief  justice,  who  delivered  that  opinion  of 
the  court,  for  he  has  said  that  liv  is  less  confident  of  the  soundness 
of  that  decision  than  when  it  was  pronounced  ;  and  in  the  Common- 
wealth r.  Conard,  1  Rawle  253,  Justice  Smith  says,  "indeed  very 
few  lawyers  foresaw  or  expected  the  decision  of  Pennock  r.  Hart." 
It  is  restricted  in  its  application  in  Black  ?-.  Dobson,  11  S.  \  R.  94, 
and  in  Bombay  r.  Boyer,  14  Id.  253.  In  tho  Commonwealth  r. 
McKisson  the  lien  is  confined  to  the  particular  lands  levied  on  :  and 
there  the  court  seemed  reluctant  to  go  even  that  far.  Chahoon  r. 
Ilollenback.  1»>  S.  &  K.  425,  is  the  last  case  on  the  subject,  and 
where  Huston,  J.,  reviews  all  the  prior  cases,  and  decides  against 
the  lien  now  asked  for. 


27G  SUPREME  COURT  [Lancaster 

[Betz's  Appeal.] 

The  object  of  an  execution  is  satisfaction  of  the  debt,  not  security 
for  it ;  and  whenever  an  execution  creates  a  lien,  it  is  on  the  pro- 
perty specifically  levied,  which  is  necessary  to  render  the  process 
effectual,  until  satisfaction  is  obtained.  A  levy  on  a  particular  tra-ct 
of  land  is  notice  that  the  creditor  has  resorted  to  it  for  payment, 
and  a  lien  is  the  consequence  until  it  is  obtained;  but  a  levy  on  per- 
sonal property,  or  a  return  of  nulla  bona,  can  give  no  such  notice ; 
the  former  may  induce  third  persons  to  believe  that  the  judgment- 
creditor  has  resorted  to  the  personal  property  and  received  satisfac- 
tion ;  and  the  latter  is  but  notice  that  no  satisfaction  was  obtained, 
•which  sufficiently  appears  by  the  unsatisfied  judgment  on  the  docket. 
Mills  and  Rees's  judgments,  although  transcripts  from  the  docket 
of  a  justice,  are  entered  for  the  purpose  of  lien  on  the  real  estate, 
and  are  necessarily  liable  to  all  the  legal  consequences  incident  to 
the  lien  of  a  judgment  under  the  Act  of  4th  April  1798. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — (His  Honor  stated  fully  the  facts  of  the  case.) 
The  questions  which  are  to  be  decided  here  are,  1.  Whether  the 
lien  of  a  judgment  is  continued  beyond  five  years,  from  the  first 
return-day  of  the  term  of  which  it  is  entered,  without  a  scire  facias 
to  revive  the  same,  by  a  fieri  facias  issued  within  a  year  and  a 
day,  and  returned,  levied  on  personal  property,  subject  to  prior  ex- 
ecutions, or  levied  on  personal  property,  as  per  inventory  annexed, 
or  returned  "  nulla  bona ;"  and  2.  Whether  the  transcript  of 
a  judgment  of  a  justice  of  the  peace,  filed  in  the  Court  of  Common 
Pleas,  continues  the  lien  five  years  from  the  day  on  which  it  was 
actually  entered,  or  five  years  from  the  first  return-day  of  the 
term  of  which  it  is  entered,  according  to  the  provisions  of  the  Act 
of  the  4th  of  April  1798.  With  regard  to  this  last  question,  we 
find  it  impossible  to  draw  a  distinction  between  a  judgment  entered 
by  confession  or  on  verdict,  and  a  judgment  entered  from  a  tran- 
script of  a  justice.  It  was  long  ago  decided  that  judgments  ob- 
tained before  justices  of  the  peace,  when  filed  in  the  prothonotary's 
office,  are  on  the  same  footing  with  judgments  in  court:  Scott  v. 
Ramsey,  1  Binn.  221 .  The  words  of  the  Act  of  1798,  sect.  2,  are 
that  "no  judgment  hereafter  entered  in  any  court  of  record  within 
this  Commonwealth,  shall  continue  a  lien  on  the  real  estate  of  the 
person  against  whom  such  judgment  may  be  entered,  during  a 
longer  term  than  five  years  from  the  first  return-day  of  the  term 
of  which  such  judgment  may  be  so  entered,  unless  the  person  who 
may  obtain  such  judgment,  or  hi.s  legal  representatives,  or  other 
persons  interested,  shall  within  the  said  term  of  five  years,  sue  out 
a  writ  of  scire  facias,  to  revive  the  same.  We  have  no  doubt  that 
the  case  of  a  transcript,  is  embraced  both  by  the  language  and 
spirit  of  this  provision,  and  we  are  unanimously  of  opinion,  that  the 


May  1830.]  OF  PENNSYLVANIA.  277 

[Betz's  Appeal.] 

court  below  was  correct  in  sustaining  .the  exception  to  the  allow- 
ance of  Reese  and  Mills'  judgments,  as  existing  liens,  five  years 
from  the  first  return-day  of  the  January  term  1823,  having  expired, 
when  the  scire  facias  was  issued  upon  them  respectively,  though 
only  by  a  single  day.  The  other  question  does  not  admit  of  so  eaSy 
a  solution,  nor  are  the  members  of  this  court  unanimous  respecting 
it.  I  may,  however,  state  that  four  of  us  concur  in  the  opinion, 
that  where  the  fieri  facias  is  returned  "  nulla  bona,"  the  lien  is  not 
thereby  continued  on  the  land;  and  that  a  majority  of  the  court 
consider  that  the  lien  is  riot  continued  by  a  fieri  facias,  returned 
levied  on  personal  property,  as  per  inventory  annexed. 

The  Act  of  1798,  limiting  the  time  during  which  a  judgment 
shall  be  a  lien  on  real  estate,  &c.,  is  imperative  in  its  injunction, 
that  no  judgments  shall  continue  a  lien,  unless  a  writ  of  scire  facias 
be  sued  out  within  the  time  therein  prescribed,  to  revive  the  same. 
It  is  true,  that  this  excepting  clause,  has  been  extended  by  con- 
struction to  the  case  of  a  fieri  facias  levied  on  lands,  and  also  to 
the  case  of  a  casset  executw,  making  the  five  years  during  which 
the  scire  facias  may  be  issued  to  commence  at  the  expiration  of  the 
stay.  There  is  no  disposition  in  this  court,  to  carry  the  construc- 
tion beyond  the  decisions  in  the  cases  of  Young  v.  Taylor,  2  Binn. 
218;  Com.  v.  McKisson,  13  S.  &  R.  144;  and  Pennock  v.  Hart, 
8  Id.  319.  In  the  last-mentioned  case,  the  stay  of  execution  was 
entered  upon  the  record  ;  and  this  entry  has  been  decided,  in  sub- 
sequent cases  to  be  essential  to  the  extension  of  the  period  within 
which  the  plaintiff  may  issue  a  scire  facias,  to  revive  his  lien. 
Every  effort  to  induce  us  to  carry  the  construction  beyond  that 
point  has  proved  unavailing,  and  we  have  held,  that  no  agreement 
between  the  parties  for  a  stay  will  be  valid,  as  to  third  persons, 
unless  it  be  placed  upon  the  record  at  the  time  of  entering  the 
judgment:  Black  v.  Dobson,  11  S.  &  R.  94;  Bombay  v.  Boyer, 
14  Id.  253. 

In  Young  v.  Taylor,  the  fieri  facias  was  levied  on  goods  and 
land ;  the  very  land  in  controversy,  on  which  was  held  an  inquisi- 
tion that  condemned  it.  The  fieri  facias  thus  levied,  with  the  in- 
quisition and  condemnation,  was  considered,  in  point  of  notice  of  the 
creditor's  pretensions,  to  be  equivalent  to  the  scire  facias,  mentioned 
in  the  Act  of  the  4th  of  April,  1798,  and  to  supersede  that  writ. 
Even  the  letter  of  this  case  affords  no  support  to  the  errors  assigned 
by  the  appellants,  whose  writs  of  fieri  facias  were  levied  on  per- 
sonal property  alone;  and  if  we  regard  its  spirit  and  reason,  which 
constitute  the  real  authority  of  every  precedent,  we  shall  be  satisfied 
that  it  cannot  contribute  in  the  least  to  sustain  these  appeals.  The 
Act  of  Assembly  in  question  was  passed  for  the  safety  of  purcha- 
sers of  real  estate.  The  scire  facias  within  five  years  was  intended 
as  notice  that  the  judgment-creditor  still  looked  to  the  laud  as 


278  SUPREME  COURT  [Lancaster 

[Betz's  Appeal.] 

security  for  his  debt.     His  omission  to  sue  it  out  affected  him  in 
no  other  way  than  by  relieving  the  land  from  the  lien  of  his  judg- 
ment.    The  purchaser,  where  a  scire  facias  has  been  duly  sued  out, 
is  fully  notified  of  the  encumbrance,  and  of  the  creditor's  intention 
to  regard  the  land  as  the  fund  out  of  which  he  expects  to  be  paid. 
Buying  with    notice  he    cannot  complain.      "But,"   said    Judge 
Yeates,  in  '2  Binn.  229,  "it  will  not  be  denied,  that  the  plaintiff 
taking  out  a  fieri  facias,  levying  on  goods  and  lands  of  the  defend- 
ant, and  condemning  the  lands  by  an  inquest,  are  matters  of  noto- 
riety, and  in  point  of  notice  of  the  creditor's  pretensions,  tanta- 
mount to  a  scire  facias.     Such  I  take  it,  has  been  the  construction 
of  this  section  of  the  act."     It  was  the  notoriety  of  these  proceed- 
ings upon  the  judgment  affecting  the  lands,  that  was  thought  to 
supply  the  purpose  of  the  scire  facias,  in  giving  notice  of  the  plain- 
tiff's intention  not  to  relinquish  his  lien  upon  them.     But  how  can 
we  infer  such  an  intention  from  a  fieri  facias,  levied  upon  personal 
property   only?     In    Hunt  v.  Breading,    12  S.  &  R.   37,  it  was 
decided  that  a  judgment-creditor,  who  has  seized  the  goods   of  his 
debtor  in  execution,  cannot  discharge  them,  and  leave  his  judgment 
in  force  as  to  the  land.     See,  also,  Dean  v.  Patton,  13  S.  &  R.  341, 
and  Duncan  v.  Harris,  17  Id.  43G.     A  levy  on  personal  property, 
cannot   be  considered   as  notice   to  a   purchaser  that   the  creditor 
means  to  rely  on  his  lien  upon  the  debtor's  lands.      It  is  an  indica- 
tion of  a  different  intention.      The  fieri  facia-s  itself  is  no  lien  upon 
the  land,  until  it  is  seized  in  execution  by  virtue  of  the  writ.     It 
is  a  lien  upon  the  defendant's  goods  from  the  time  of  its  delivery 
to  the  sheriff,  and  where  goods  of  a  sufficient  value  are  actually 
seized  in  execution,   the  debt  is  extinguished,  and  the  judgment 
satisfied.      In   the  fact  of  levying  on  personal   property,   what  is 
there,  of  actual  notoriety,  calculated  to  supply  the  notice  by  scire 
facias  of  the  creditor's  purpose  to  renew  or  revive  his  lien  upon 
the  defendant's  land?     Certainly  nothing.      If,  then,  we  go  to  the 
record,  we  find  an  entry  of  a  fieri  facias  issued,  and  returned,  "levied 
on  personal  property."      Is  there  anything  in  this  that  really  inti- 
mates the  creditor's  design  to  maintain   his  lien  upon  the  land  ? 
On  the  contrary,  the  entry  shows  that  the  creditor  has  resorted  to 
the   defendant's  goods,   for  the  satisfaction  of   his  debt ;    and  the 
legal  consequence  is  that  he  is  not  at  liberty  to  give  them  up  and 
proceed  against  the  land.      In  the  case  of  Commonwealth  r.  McKis- 
son,  13  S.  &  R.  144,  the  decision  was   "barely  on   the  effect  of  a 
levy  on  particular  lands,  preserving  the  lien  on  the  land  levied," 
without  a  scire  facias  to  revive  ;  and  it  was  decided  on  the  authority 
of  Young  v.  Taylor  that  it  was  sufficient  for  that   purpose,  though 
Judge   Duncan,  who  delivered   the  opinion   of  the  court,   declared 
that  if  the  matter  were  res  intcyra,  he  would  have  given  a  different 
decision. 


May  1830.1  OF  PENNSYLVANIA.  279 

[Beta's  Appeal.] 

Upon  the  present  question  I  consider  this  court  as  untrammelled 
by  former  decisions.  We  have  the  plain  and  unequivocal  enactnient 
of  the  legislature  for  our  guide,  without  any  reason  to  suppose  that 
if  they  had  foreseen  the  case  now  under  consideration,  they  would 
have  employed  one  word  more  or  less  in  order  to  bring  it  within  the 
exception  to  their  limitation.  There  is  no  instance  in  which  a  fieri 
facias  levied  merely  upon  personal  property  has  been  held  tc  be 
•within  that  exception  ;  nor  can  the  decisions  or  practice  under  the 
Statute  of  Westminster  II.,  in  my  opinion,  warrant  such  a  con- 
struction in  relation  to  a  fieri  facias  thus  executed.  The  object 
and  character  of  that  statute,  and  of  our  Act  of  the  4th  of  April 
1708,  are  indeed  so  different  that  I  am  at  a  loss  to  discover  the  pro- 
priety of  reasoning  from  one  to  the  other. 

•  In  fine,  we  think  that  no  scire  facias  was  sued  out,  according  to 
the  second  section  of  the  Act  of  4th  April  1798,  to  revive  the  judg- 
ments of  Jacob  K.  Boyer,  for  the  use  of  Henry  Betz,  arid  the 
judgments  of  Joseph  Iliester,  Esq.,  within  five  years  from  the  first 
return-day  of  the  term  of  which  they  were  respectively  entered, 
they  did  not  continue  a  lien  on  the  i;eal  estate  of  the  defendants 
therein  named  beyond  that  period,  notwithstanding  the  fieri  facias 
issued  upon  them,  and  levied  on  the  personal  property  of  these  de- 
fendants. The  appellee,  Jacob  Hawk,  had  issued  a  writ  of  scire 
facias  to  continue  his  lien,  so  that,  in  fact,  the  case  was  between 
those  who  had  complied  with  the  law,  and  those  who  had  disre- 
garded it. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — No  man  is  more  ready  than  I  to  admit  the  fal- 
lacy of  the  construction  in  Young  r.  Taylor,  but  as  it  has  laid  the 
foundation  of  a  practice  extensively  adopted,  I  think  that  the  germ 
of  much  evil  is  discernible  in  the  present  departure  from  it.  The  im- 
portance of  that  case  is  not  derived  from  the  point  directly  decided, 
but  from  the  breadth  of  a  principle  asserted  in  it  that  "  no  change 
was  intended  in  the  mode  of  keeping  judgments  alive  by  issuing 
an  execution  within  the  year  and  day,  superseding  the  necessity  of 
issuing  a  scire  facias  under  the  Statute  of  Westminster  II."  Since 
that  statute  the  judgment  was  kept  alive  by  the  issuing  and  continu- 
ance of  an  execution,  without  regard  to  the  circumstances  of  a  levy 
which  was  considered  to  be  immaterial  ;  and  I  feel  confident  that  on 
the  authority  of  this  dictum  the  same  practice  luus  prevailed  in  many 
parts  of  the  state  as  uninterruptedly  since  the  Act  of  Assembly  as 
it  did  before.  To  follow  it  to  the  point  at  which  it  has  been  arrested 
by  the  legislature  would  produce  no  material  inconvenience:  for 
although  little  accordant  with  the  letter  or  spirit  of  the  act,  I  am 
not  aware  that  it  has  ever  produced  injustice  :  what  the  conse- 
quences of  overturning  it  may  be  retrospectively,  no  man  can  fore- 


280  SUPREME  COURT  [Lancaster 

[Betz's  Appeal.] 

see.  Purchasers  have  reposed  on  it  for  twenty  years ;  and  to  de- 
prive them  of  a  title  founded  in  a  practice  repeatedly  recognised  by 
judicial  decision  ought  to  require  the  presence  of  an  overruling 
mischief,  which,  it  seems  to  me,  does  not  exist.  I  am,  therefore, 
averse  to  any  change,  particularly  in  what  seems  to  me  to  have 
become  a  rule  of  property  ;  and  I  am  happy  to  say  my  brother 
Rogers  is  of  the  same  opinion. 

The  judgment  and  decrees  of  the  Court  of  Common  Pleas  are 
affirmed. 

ROGERS,  J.,  concurred  with  the  chief  justice. 

Referred  to,  3  P.  &  W.  202. 
Commented  on,  11  II.  219. 
Followed,  3  P.  &  W.  445. 

See  26  March  1827,  $1,9  Sin.  Laws.  303,  continuing  the  lien  of  a  judgment 
for  five  years  from  the  day  of  entry,  or  revival  thereof. 


Betz  against  Heebner. 

An  assignee  of  bonds,  which  are  secured  by  a  mortgage,  is  entitled  to  all 
the  security  which  the  mortgage  affords,  although  he  did  not  know  of  its  exist- 
ence when  he  took  an  assignment  of  the  bonds. 

An  assignment  of  the  mortgage  deed,  to  one  who  holds  part  of  the  bonds, 
gives  him  no  preference  over  the  other  bondholders,  in  the  distribution  of 
the  proceeds  of  sale  of  the  mortgaged  premises. 

ERROR  to  the  Common  Pleas  of  8chuylkill  county. 

This  case  came  before  the  Court  of  Common  Pleas  on  a  rule  to 
appropriate  the  proceeds  of  the  sale  by  the  sheriff  of  the  real  estate 
of  George  Heebner. 

The  following  facts  were  agreed  to  as  a  special  verdict : 

George  Heebner,  the  defendant,  on  the  12th. April  1814,  executed 
a  mortgage  on  one  hundred  and  fifty  acres  of  land  to  secure  the  pay- 
ment of  nine  bonds,  given  at  the  same  time,  to  William  Green,  arid 
which  fell  due  on  the  1st  of  April  in  each  year  thereafter.  The  first 
two  bonds  wore  paid  when  they  fell  due.  On  the  6th  of  September 
1816,  the  next  three  bonds  were  assigned  by  Green  to  Daniel 
Groeff,  and  the  payment  thereof  was  guaranteed  by  the  said  Green. 
These  bonds  were  afterwards,  on  the  'Jth  September  1816,  assigned 
to  George  Heinler,  by  Groeff,  who  also  guaranteed  the  payment 
thereof;  one  of  these  three  was  afterwards  assigned  by  Ileisler  to 
John  Stroh,  who  brought  a  suit  thereon,  obtained  judgment,  issued 
a  fieri  facias,  which  was  levied  on  personal  property,  and  issued  a 


May  1830.]  OF  PENNSYLVANIA.  281 

Betz  v.  Heebner.J 

vend,  expos,  upon  which  the  sheriff  returned  "sold  and  proceeds 
applied  to  prior  executions."  The  other  two  of  the  last  three  men- 
tioned bonds,  were  assigned  by  Ileisler  to  the  Farmers'  Bank  of 
Reading,  who  brought  suit  thereon,  obtained  judgment,  issued  fieri 
facias,  and  levied  on  the  mortgaged  premises.  On  the  27th  July 
1818,  the  mortgage  deed  was  first  put  on  record.  On  the  3d  Sep- 
tember 1818,  the  mortgage  deed,  together  with  the  last  four  bonds, 
were  assigned  by  Green  to  Henry  Betz,  the  plaintiff,  who  issued  a 
scire  facias  upon  the  mortgage,  obtained  judgment,  issued  levari 
facias,  upon  which  the  mortgaged  premises  were  sold  for  $800,  and 
the  money  paid  into  court  for  appropriation.  The  question  for  the 
opinion  of  the  court  was  whether  Henry  Betz,  the  assignee  of  the 
mortgage,  was  entitled  to  the  whole  amount  of  the  proceeds  of 
the  sale,  in  discharge  of  his  four  bonds  ;  or  whether  each  holder  of 
a  bond  was  entitled  to  a  pro  rata  dividend  thereof. 

The  opinion  of  the  court  below  was,  that  the  mortgage  was  a 
security  for  all  the  bonds,  and  that  the  proceeds  of  sale  should  be 
distributed  pro  rata  among  the  holders. 

This  opinion  was  here  assigned  as  error. 

Bannan  and  Biddle,  for  plaintiff  in  error. — This  case  differs 
from  the  case  of  Donnelly  v.  Hays,  17  S.  &  11.  400,  in  this,  that 
at  the  time  Betz  took  the  assignment  of  the  mortgage  and  bonds, 
he  had  no  notice  that  the  first  bonds  were  unpaid,  and  in  the  hands 
of  assignees.  The  assignees  of  the  first  bonds  knew  nothing  of  the 
mortgage  when  they  took  their  assignments,  for  it  was  not  on 
record  at  the  time ;  Betz  has  therefore  greater  equity,  and  a  supe- 
rior legal  right,  in  having  an  assignment  of  the  mortgage  itself: 
Wells  v.  Archer,  10  S.  &  II.  412.  When  Green  assigned  the  first 
bonds,  there  was  no  lien  on  the  land,  and  he  had  a  right  to  make 
what  bargain  he  pleased  with  the  assignees,  and  having  reserved  to 
himself  the  mortgage,  for  the  security  of  the  last  bonds  alone,  this 
agreement  will  have  the  effect  which  the  parties  designed  it  should 
have. 

Smith,  for  defendant  in  error,  whom  the  court  declined  to  hear. 

Judgment  affirmed. 

Referred  to,  9  B;vrr  35  ;   10  Id.  479  :  7  Smith  SOL*. 
Affirmed  and  eases  reviewed,  Perry's  Appeal,  10  II.  43. 
Followed,  1 1  Wr.  '220. 


282  SUPREME  COURT  [Lancaster 


Bowman  against  Heir's  Ex'rs. 

Previously  to  the  settlement  of  an  account  in  the  Orphans'  Court  an  action 
of  assiimpsit  will  not  lie  by  the  ward  agairv  t  his  guardian  to  compel  such 
settlement  and  payment  of  the  balance. 

The  Orphans'  Court  has  full  power  and  authority  to  settle  the  account  of 
a  guardian,  and  if  a  balance  is  found  to  be  in  his  hands  when  the  ward  arrives 
at  full  age.  to  compel  the  payment  of  it,  by  attachment  or  sequestration  of 
the  goods  or  lands  of  the  accountant. 

A  settlement  made  by  the  guardian  once  in  every  three  years,  in  pursuance 
of  the  iid  section  of  the  Act  of  the  31st  of  March  18121,  is  not  conclusive  upon 
the  ward,  but  may  be  impeached  upon  the  final  settlement  of  the  account 
when  tin-  ward  arrives  at  full  age. 

I'pon  the  death  of  a  guardian  before  the  settlement  of  his  account,  his 
representatives  may  be  cited  and  compelled  to  settle  it;  and  the  Orphans' 
Court  injiv  exercise  the  same  power  to  compel  them  to  pay  over  the  balance 
as  they  would  against  the  guardian  himself. 

APPEAL  by  the  plaintiff  from  the  decision  of  Huston,  J.,  at  a 
Circuit  Court  held  in  Lebanon  county. 

Henry  11  err,  the  defendant's  testator,  had  been  the  guardian  of 
Michael  Bowman,  the  plaintiff,  and  died  without  having  settled  a 
guardianship-account  of  the  estate  of  his  ward  which  had  come  to 
his  hands. 

The  plaintiff,  Michael  Bowman,  after  he  arrived  at  full  age, 
brought  this  suit  against  the  representatives  of  Henry  Ilerr,  his  late 
guardian,  and  claimed  to  recover  upon  a  declaration  for  money  had 
and  received  for  his  use. 

Upon  a  trial  of  the  cause,  the  plaintiff  offered  evidence  of  the 
receipt  of  money  by  the  defendant's  testator,  as  the  guardian  of 
the  plaintiff,  to  which  the  defendant  objected,  on  the  ground  that 
the  plaintiff  could  not  support  his  action,  without  showing  that  pre- 
viously to  the  institution  of  it,  the  guardian  or  his  representatives 
had  settled  a  guardianship-account  in  the  Orphans'  Court.  This 
objection  having  been  sustained  by  the  court,  the  plaintiff  took  a 
nonsuit,  which  he  afterwards  moved  the  court  to  take  off,  and  which 
being  refused,  he  entered  this  appeal. 

In  this  court  the  cause  was  argued  by 

Elder  and  Hopkins^  for  plaintiff's  appellant. 
Kline  and  Wcidman,  for  appellees. 

The  opinion  of  the  court  was  delivered  by 

HoiiKKS,  J. — At  the  common  law,  a  guardian  is  liable  to  an  action 
of  account-render,  but  there  is  no  instance  of  an  action  for  money 
had  and  received  having  been  sustained  against  him,  before  settle- 
merit  of  his  account.  The  remedy  by  account-render,  is  but  seldom 
resorted  to,  but  the  practice  is  for  the  ward  to  file  a  bill  in  chancery, 
calling  the  guardian  to  account.  The  Equity  courts  take  jurisdic- 
tion on  the  ground  of  their  general  superintendence  of  all  infants, 
and  because  the  guardian  is  a  trustee ;  and  it  is  the  peculiar  duty 


May  1830.]  OF  PENNSYLVANIA.  283 

[Bowman  v.  Ilerrs  Ex'rs.] 

of  chancery  to  insure  the  faithful  discharge  of  a  trust.  This  course 
has  many  advantages,  as  the  guardian  may  be  examined  on  oath, 
and  is  compellable  to  produce  books  and  papers,  and  other  written 
documents,  that  may  lead  to  a  thorough  investigation  of  the  case, 
arid  a  just  decision  of  the  controversy :  Co.  Lit.  80 ;  1  131.  Com. 
463 ;  13ac.  Ab.,  tit.  Guardian  and  Ward.  The  same  results  may 
be  obtained  in  the  action  of  account-render,  although  in  a  mode 
more  troublesome  and  expensive.  But  this  cannot  be  done  in 
assurnpsit,  which  may  be  the  reason  that  no  such  action  has  ever 
been  attempted.  As  early  as  the  27th  March  17i3,  all  authority 
in  relation  to  guardian  arid  ward,  was  committed  to  the  Orphans' 
Court,  with  an  appeal,  as  the  law  now  stands,  to  the  Circuit  Court, 
and  afterwards  to  the  Supreme  Court.  They  were  vested  with  the 
power  of  appointing  guardians,  and  it  is  made  the  especial  duty  of 
the  court  to  see  that  the  trust  is  faithfully  discharged,  and  for  this 
purpose  they  are  clothed  with  authority  at  any  time  to  exact  secu- 
rity from  the  guardian,  may  discharge  him  on  his  own  applica- 
tion, or  may  dismiss  him  for  malfeasance,  or  any  other  just  cause, 
and  compel  him  by  attachment  or  sequestration  to  pay  over  the 
balance  in  his  hands,  and  surrender  all  muniments  of  title  in  his 
possession. 

In  the  llth  section  of  the  act,  it  is  directed  that  when  the  minor 
has  been  fully  paid,  satisfaction  shall  be  entered  in  the  Orphans' 
Court.  When  bonds  have  been  taken  in  pursuance  of  the  Act  of 
the  30th  March  1821,  the  condition  of  the  bond  is  to  render  a  just 
and  true  account  in  the  Orphans'  Court,  and  to  deliver  up  the  pro- 
perty of  the  minor,  agreeably  to  the  decree  or  order  of  the  court. 
The  third  section  of  the  act  requires  the  guardian  to  settle  once  in 
every  three  years,  in  the  same  court,  and  at  such  other  times  as 
may  be  required  by  the  court.  These  various  acts  evidently  show 
that  the  legislature  intended  to  devise  a  system  complete  in  itself, 
by  the  erection  of  a  tribunal  with  all  the  power  necessary  to  afford 
adequate  relief.  AVhich  view  of  the  case,  taken  in  connection  with 
the  act,  which  prescribes  that  when  a  remedy  is  provided,  a  duty 
enjoined,  or  anything  is  directed  to  be  done  by  an  Act  of  Assembly, 
the  directions  of  the  act  shall  be  strictly  pursued,  induced  the 
opinion  that  the  Orphans'  Court  alone  had  the  power  to  compel 
the  settlement  of  a  guardian's  account.  In  Denison  r.  Cornwell, 
17  S.  &  R.  378,  it  was  decided  that  the  Orphans'  Court  was  the 
proper  tribunal  to  settle  accounts  between  guardian  and  ward.  For 
this  purpose,  they  are  clothed  with  the  authority  of  a  court  of 
equity.  They  may  examine  the  guardian  on  oath,  to  charge  or 
discharge  him,  may  compel  the  production  of  hooks  or  other  docu- 
ments, and,  in  general,  may  exercise  every  authority  neeessurv  to 
enforce  a  faithful  performance  of  the  trust.  The  accounts  of 
guardians  consist  of  a  variety  of  items,  some  very  trifling  in  amount, 
and  if  the  investigation  must  be  conducted  on  the  principles  of  the 


284  SUPREME  COURT  [Lancaster 

[Bowman  r.  Heir's  EXTS.] 

common  law,  injustice  of  the  most  glaring  kind  may  frequently  be 
the  result,  for  unless  the  guardian  be  prepared  in  case  of  a  disputed 
account  with  the  proof  of  every  voucher,  his  charge  before  a  com- 
mon-law court  will  be  disallowed.  And  to  make  this  the  duty  of  a 
guardian,  in  the  course  of  a  trial,  which  is  frequently  terminated  in 
a  single  day,  would  be  such  an  intolerable  hardship  as  to  prevent 
persons  from  accepting  a  trust  which  cannot  be  attended  with  profit, 
but  must  necessarily  result  in  trouble,  and  eventual  loss.  The 
Orphans'  Court  may,  on  the  contrary,  in  the  exercise  of  a  reason- 
able discretion,  allow  time  to  procure  proof  of  expenditures,  or  may 
supply  the  want  of  a  regular  voucher  (which  ought  to  be  done  with 
great  caution),  by  the  oath  of  the  guardian  himself.  And  this 
should  be  permitted  when,  from  the  nature  of  things,  no  regular 
vouchers  can  be  attained,  as  for  travelling  expenses,  going  to,  and 
returning  from  school,  and  others  of  a  similar  character.  The 
office  of  guardian  is  one  of  peculiar  trust  and  confidence ;  it  is, 
therefore,  of  importance  that  we  should  adopt  no  rule  which  may 
prevent  men  of  the  first  integrity  and  character  from  accepting  the 
trust. 

It  is  said  that  Denison  v.  Cornwell  is  contrary  to  the  practice. 
Of  this  practice,  so  confidently  relied  on,  no  one  member  of  the 
court  is  aware,  and  if  so  general  as  to  furnish  a  rule  for  decision,  it 
is  singular  that  not  a  trace  of  it  should  exist  in  the  books.  The 
case  of  Denison  v.  Cornwell  has  alone  been  produced,  and  which 
establishes  a  rule  directly  the  reverse.  Whether  in  any  case  a 
minor  would  be  concluded  by  an  account  settled  in  his  minority,  it 
is  not  necessary  to  decide.  It  is,  however,  plain  he  would  not  be 
prevented  from  impeaching  an  account  settled  in  the  Orphans' 
Court,  in  pursuance  of  the  third  section  of  the  Act  of  18:21.  In 
directing  a  settlement  once  in  every  three  years,  the  legislature 
intended  it  as  a  measure  of  precaution,  an  additional  security  to  the 
infant.  By  the  settlement,  the  court  and  the  friends  of  the  infant 
have  an  opportunity  of  knowing  the  situation  of  the  estate :  if  there 
is  any  reason  to  apprehend  injury  to  the  rights  of  the  minor,  mea- 
sures may  be  taken  to  guard  his  interests,  either  by  dismissing  the 
guardian  or  compelling  him  to  give  additional  security  for  the  per- 
formance of  his  duty.  Such  a  settlement  would  not  conclude  the 
infant,  and  it  may  be  doubtful  whether  it  would  be  even  prima  facie 
evidence  in  favor  of  the  guardian.  The  Orphans'  Court  would 
have  the  power  to  compel  a  re-settlement  of  the  account,  after  the 
infant  attained  his  age.  Such  a- settlement  alone  would  be  conclu- 
sive upon  both  guardian  and  ward. 

Doubts  have  been  expressed  whether  the  Orphans'  Courts  have 
power  to  enforce  their  decrees.  It  has  been  said  that  resort  must 
be  had  for  that  purpo.se  to  the  common-law  courts.  After  settle- 
ment, an  action  of  assumpsit  will  lie  to  enforce  payment  of  the 
balance  ;  but  it  is  by  no  means  conceded  that  it  is  the  only,  although 


May  1830.]  OF  PENNSYLVANIA.  285 

[Bowman  v.  ilerr's  Ez'rs.] 

it  is  the  usual  remedy.  By  the  8th  section  of  the  Act  of  the  27th 
March  1713,  the  justices  may  send  their  attachment  for  contempt, 
and  may  force  obedience  to  their  warrants,  sentences  and  orders 
concerning  any  matter  or  thing  cognisable  in  the  same  courts,  by 
imprisonment  of  the  body,  a  sequestration  of  lands  or  goods,  as  fully 
as  any  court  of  equity  may  or  can  do.  As  early  then,  as  the  first 
organization  of  the  court,  full  and  plenary  authority  has  been  given 
them,  by  attachment  or  sequestration,  to  enforce  compliance  with 
their  order  or  decrees. 

By  the  death  of  Henry  Ilerr,  the  guardianship  ended,  and  if 
there  was  a  balance  in  his  hands,  the  minor  became  a  creditor  of 
the  estate,  and  this  the  administrator  may  be  compelled  to  settle 
and  pay  over.  Whatever  the  deceased  has  received  in  his  indivi- 
dual or  fiduciary  character,  his  representatives  may  be  compelled  to 
settle,  either  by  attachment  or  sequestration,  as  in  the  case  of  the 
guardian  himself. 

Judgment  affirmed. 

Referred  to,  3  II.  246 ;  10  Barr.  529 ;  9  II.  341 ;  1  C.  215. 

Commented  on,  7  W.  67,  68;  6  Phila.  509. 

Affirmed,  by  Wells's  Appeal,  9  Barr  103. 

Followed,  1  W.  235  ;  7  W.  &  S.  30,  31 ;  12  Smith  440. 


Hart  against  Withers  et  al. 


IN   ERROR. 


One  partner  cannot  hind  his  co-partner  by  deed,  although  it  be  given  in 
a  transaction  in  the  course  of  the  business  of  the  firm,  and  the  benefit  of  the 
contract  be  received  by  the  firm. 

In  such  case  where  an  award  had  been  made  against  the  defendants,  and 
by  agreement  they  were  let  into  a  defence  on  the  merits,  without  beinji  in  any 
degree  prejudiced  by  the  award,  in  their  defence,  they  are  not  precluded  by  the 
agreement  from  putting  in  the  plea  of  non  est^iirtuni,  and  availing  themselves 
the  of  fact  that  the  instrument  declared  on  was  executed  but  by  one  of  the 
firm  only. 

But  if  such  agreement  had  that  effect,  it  would  be  waived  by  taking  issue 
on  the  plea  of  non  ettt  faction,  instead  of  moving  to  have  it  struck  out. 

N\  hen  suit  is  brought  against  several  partners  upon  a  sealed  in.-trument, 
executed  by  one  for  all.  the  plaintiff*  cannot  recover  against  the  partner  who 
actually  executed  the  instrument  alone. 

ERIIOH  to  the  District  Court  for  the  city  and  county  of  Lan- 
caster. 

In  that  court  it  was  an  action  of  covenant,  brought  by  the  plain- 
tiff, who  was  also  plaintiff  in  error,  against  the  defendants,  upon 
the  following  agreement : 


286  SUPREME  COURT  [Lancaster 

[Hart  r.  Withers.] 

"Be  it  remembered  that  on  the  13th  day  of  January  1816, 1  have 
purchased  of  Benjamin  Hart,  forty  acres,  or  as  much  more  as  he 
may  choose  to  let  me  have,  of  woodland  on  the  place  said  Hart 
bought  of  Joseph  Miller,  in  Colerain  township,  at  the  rate  of  $-4 
per  acre.  The  cutting -to  begin  at  the  corner  near  John  Caughey's 
field,  and  from  thence  along  the  road  to  the  lower  end  of  the  mead- 
ow on  said  place,  and  to  cut  back  in  regular  proportions  or  dis- 
tances from  said  road ;  and  I  do  hereby  agree  to  give  to  said  Hart, 
as  soon  as  the  quanity  is  surveyed,  three  notes  for  the  amount,  pay- 
able at  either  of  the  banks  in  Lancaster  county,  in  equal  propor- 
tions ;  the  first  note  payable  on  the  first  day  of  July  next,  the  second 
on  the  first  day  of  October  thereafter,  and  the  third  and  last  pay- 
ment on  the  first  day  of  January  following.  It  is  further  agreed 
that  I  am  to  give  said  Hart  two  thousand  good  and  sufficient  chest- 
nut rails  out  of  said  wood-cutting,  for  which  I  am  to  have  a  credit 
of  $30  on  the  amount  of  the  wood.  The  wood  to  be  all  cut  before 
the  first  day  of  May  1817,  and  the  wood  to  be  coaled  in  the  same 
season.  In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal 
the  day  and  year  first  above  written. 

JOHN  WITHERS  &  Co. 
Witnesses, 

WILLIAM  MURRAY 

JOSEPH  MILLER." 

The  plaintiff  entered  a  rule  of  reference,  under  which  arbitrators 
were  appointed,  who,  on  the  10th  November  1818,  made  an  award 
in  favor  of  the  plaintiff  for  §11.70  with  costs.  On  the  22d  March 
is 20,  the  attorneys  of  the  parties  agreed  "that  the  award  of  arbi- 
trators in  this  cause  should  stand  as  a  security  for  the  sum,  if  any, 
which  shall  hereafter  be  found  to  be  due  on  trial;  and  that  the  de- 
fendants  are  to  be  let  into  a  defence  upon  the  merits,  without  being 
in  any  degree  prejudiced  by  the  award  in  the  defence." 

The  pleas  of  the  defendants,  upon  which  the  cause  was  put  to 
issue,  were  non  cut  fart  urn,  and  performance  with  leave,  &c. 

On  the  trial,  the  plaintiff,  after  proof  that  the  article  of  agree- 
ment on  which  suit  was  brought,  was  executed  by  John  Withers, 
but  not  in  the  presence  of  the  other  partners,  offered  in  evidence  in 
connection  with  that  agreement,  "the  agreement  entered  in  the 
cause  by  the  attorneys  to  try  the  cause  upon  the  merits,  and  to 
show  that  at  the  time  of  entering  into  the  article,  John  Withers, 
Michael  Withers  and  George  Withers,  were  iron-masters  in  company, 
that  they  acted  and  transacted  business  for  each  other,  by  one  ex- 
ecuting deeds  in  the  name  of  one  for  the  use  of  all  the  company. 
That  the  whole  proceeds  of  the  timber  were  taken  to  the  company 
works,  and  there  used  for  the  joint  interest  of  the  company,  with 
the  full  approbation  of  all  the  defendants." 


May  1830.]  OF  PENNSYLVANIA.  287 

[Hart  v.  Withers.] 

This  evidence  being  objected  to,  was  rejected  by  the  court,  and 
a  bill  of  exceptions  sealed. 

The  plaintiff  then  offered  this  evidence  against  John  "Withers 
(the  party  who  executed  the  article)  alone ;  this  was  also  objected 
to,  rejected  by  the  court,  and  another  bill  of  exception  thereupon 
sealed. 

These  bills  of  exception  were  severally  assigned  for  errors. 

Jenkins,  for  the  plaintiff  in  error,  contended  that  the  evidence 
was  competent  to  charge  the  defendants  upon  the  contract  declared 
upon  by  the  plaintiff'.  It  was  incumbent  on  the  plaintiff  to  prove 
that  the  defendants  were  partners,  that  the  contract  related  to  the 
partnership  business,  and  that  the  deed  declared  on  was  the  deed 
of  all  the  partners.  The  evidence  offered  went  to  establish  all 
these  points.  As  a  general  rule  it  is  conceded  one  partner  cannot 
bind  his  co-partners  by  deed,  but  the  partners  may  agree  to  be 
bound  in  that  way,  and  then  the  deed  of  one  would  be  binding  on 
all. 

1.  What  agreement  will  confer  this  power? 

2.  What  is  the  usual  proof  of  such  agreement  ? 

It  is  not  necessary  that  such  agreement  should  be  in  writing,  or 
under  seal,  it  may  be  by  parol :  Watson  on  Part.  103.  As  to  the 
evidence  of  assent  necessarv  to  constitute  such  agreement,  it  has 

v 

been  held,  that  if  they  are  present  when  the  partner  executes  the 
deed,  the  co-partners  will  be  bound ;  and  this  although  silent  when 
it  is  done.  Their  assent  is  in  that  case  inferred.  The  evidence  of 
assent  may  be  either  express,  or  inferential.  It  will  be  inferred 
from  the  acts  of  the  parties  at  the  time,  or  their  subsequent  appro- 
bation ;  as  where  one  partner  for  his  private  debts  binds  the  firm, 
and  subsequently  the  other  partners  assent  to  it,  they  are  bound, 
and  this  too  in  a  transaction  not  of  the  partnership  :  Watson  on 
Part.  109.  The  evidence  offered  went  to  establish  this  assent  by 
proof,  that  the  contract  was  beneficial  to  the  partnership,  that  the 
fruit  of  it  had  been  enjoyed  by  the  firm,  and  that  their  usual  course 
of  dealing  warranted  this  form  of  binding  the  firm.  If  the  evidence 
did  establish  the  assent  of  all  the  partners  then  they  were  all  bound. 
This  was  for  the  jury  to  determine.  One  partner  cannot  bind  the 
firm  in  a  collateral  guarantee,  but  the  assent  of  the  other  partners 
to  such  transaction  will  bind  them  ;  and  it  is  competent  to  show  this 
by  proof,  that  the  partners  usually  gave  such  guarantee  :  Chit,  on 
Con.  74.  If  these  partners  wished  not  to  be  bound  by  this  deed, 
they  should  have  disclaimed  it:  Elliott  v.  Davis,  2  Bos.  \  Pul.  .'>:>S. 
Silence  is  evidence  of  assent  in  many  cases  :  2  Starkie's  Ev.  -'1st. 
If  one  sell  the  land  of  another  in  his  presence,  and  he  is  silent,  he 
cannot  afterwards  assert  his  title.  To  permit  him  to  do  so  would 
be  a  fraud  on  the  purchaser.  And  in  our  case,  if  in  point  of  fact, 


288  SUPREME  COURT  [Lancaster 

[Hart  v.  Withers.] 

to  bind  each  other  by  deed,  was  the  mode  of  dealing  of  these  part- 
ners, it  would  be  to  permit  a  gross  fraud  not  to  receive  evidence  of 
it  to  bind  them.  A  deed  executed  by  one  partner  for  all,  may  be- 
come binding  by  subsequent  acts  of  ratification :  Skinner  v.  Day- 
ton ct  al.,  1(J  Johns.  II.  513.  This  case  also  shows  that  authority 
to  bind  partners  by  deed,  may  be  by  parol.  But  the  evidence 
offered  should  have  been  received  against  John  Withers,  who  exe- 
cuted the  article.  Where  a  judgment-bond  was  given  by  one  partner 
in  the  name  of  the  firm,  a  judgment  entered  on  it,  although  not 
binding  on  the  partner  who  did  not  execute  it,  is  on  him  who  did ; 
and  the  court  will  permit  the  name  of  the  former  to  be  stricken  out, 
and  the  judgment  to  stand  against  the  latter :  Gerard  v.  Basse,  1 
Dall.  119;  1  Black.  1133;  Green  v.  Beals,  2  Caines  255;  4  Esp. 
220.  The  agreement  upon  which  the  defendant  was  let  into  a 
defence,  was  an  agreement  to  try  on  the  merits ;  and  on  this 
ground  the  evidence  should  have  been  received.  It  never  was 
intended  under  that  agreement  that  the  defendants  should  be  per- 
mitted to  avail  themselves  of  a  defence  purely  technical,  which 
this  is. 

Buchanan,  contra,  contended  that  no  position  was  better  estab- 
lished than  that  one  partner  cannot  bind  another  by  deed :  Wats, 
on  Part.  160.  The  receipt  of  the  consideration  by  the  partners  will 
not  make  it  their  deed,  although  it  may  be  in  a  partnership  trans- 
action :  Harrison  v.  Jackson  et  al.,  7  Term.  R.  207.  This  case  is 
no  way  distinguishable  from  that  before  the  court.  It  was  a  part- 
nership transaction,  on  a  full  and  valuable  consideration  received  by 
the  partners,  and  one  partner  executed  the  deed  for  all. 

In  all  commercial  transactions  one  partner  is  considered  the 
authorized  agent  of  the  co-partners,  and  they  are  in  contemplation 
of  law  virtually  present  at,  and  sanctioning  the  proceedings  of  each 
other;  but  this  holds  only  as  to  simple  contracts:  Taylor  v.  Cor- 
yell,  12  S.  &  It.  243.  Authority  to  one  partner  to  bind  others  by 
deed,  must  be  created  by  deed,  no  subsequent  parol  acknowledg- 
ment will  do :  2  Caines  255 :  Chit.  Con.  78.  The  case  in  Wats, 
on  Part.  103,  is  where  the  partner  executed  the  deed  in  the  pre- 
sence of  his  co-partner,  with  his  express  assent  and  as  the  deed  of 
both ;  there  both  are  considered  as  having  executed  it,  the  seal 
being  adopted  by  the  partner,  who  stood  by,  when  it  was  put  to 
the  paper.  But  it  is  a  very  different  case  from  ours,  proceeding  upon 
a  principle  no  way  connected  with  the  doctrine  of  partnership. 
True,  in  commercial  transactions,  Mr.  Chitty  says  that  subsequent 
assent  is  sufficient  to  ratify  anything  done  under  the  several  power 
of  the  partners  to  bind  each  other ;  but  this  is  confined  to  commer- 
cial transactions  and  to  simple  contracts.  In  such  cases  the  authority 
is  implied,  and  subsequent  acts  and  acknowledgments  will  certainly 


May  1830.]  OF  PENNSYLVANIA.  289 

[Hart  P.  Withers.] 

confer  it.  But  it  is  not  so  with  regard  to  a  contract  by  deed,  and 
at  all  events,  there  is  no  case  where,  upon  the  plea  of  non  est  fac- 
tum,  it  was  permitted  to  the  plaintiff  to  prove  the  deed  by  evidence 
of  subsequent  assent  on  the  part  of  the  defendant.  Upon  this  plea 
no  evidence  is  competent  but  proof  of  actual  execution. 

The  case  in  10  Johns.  R.  513,  was  not  between  a  stranger  and 
the  partners,  but  between  the  partners  themselves,  in  which  one 
partner  asked  contribution  for  money  recovered  against  him  on  a 
deed  executed  by  him  for  all,  and  in  the  name  of  all  the  partners. 
The  question  in  that  case  was  not  upon  the  deed,  and  on  the  plea 
of  non  cst  factum,  but  it  was  collateral  to  it ;  and  very  properly 
the  inquiry  was  permitted  as  to  the  beneficial  nature  of  the  con- 
tract the  firm,  and  subsequent  acts  of  ratification  by  the  other  part- 
ners. If  a  recovery  had  been  had  against  John  Withers  alone  on 
this  article,  and  he  had  brought  suit  for  contribution,  and  offered 
evidence  that  the  benefit  of  the  contract  had  been  received  by  the 
firm,  then  this  case  would  be  an  authority. 

Hopkins,  in  reply. — These  partners  had  authority  to  contract  for 
each  other,  to  promote  the  object  of  the  concern.  Here  the 
fruit  of  the  contract  went  to  the  use  of  the  partners,  arid  the 
contract  was  made  in  the  course  of  their  business  and  for  their 
benefit.  It  is  therefore  a  defence  stripped  of  all  equity,  a  mere 
legal  shadow,  and  without  justice.  The  action  is  an  action  of  cove- 
nant, which  in  Pennsylvania,  is  an  equitable  action  :  Kulm  r. 
Nixon,  15  S.  &  R.  1^5.  At  law  there  is  enough  to  avoid  this 
technical  defence,  but  in  equity  there  is  no  doubt.  Assent  is  essen- 
tial to  constitute  a  contract,  but  it  may  be  either  precedent,  con- 
comitant or  subsequent  to  it,  and  in  either  case  the  same  effect,  a 
binding  contract  is  produced.  Here  the  proceeds  of  the  contract 
were  received  arid  used  by  the  company  with  the  full  knowledge  of 
the  contract ;  surely  this  amounted  to  an  affirmance  of  it :  Wat.  on 
Part.  163.  The  operating  reason  for  the  rule  that  one  partner  cannot 
bind  his  copartner  by  deed,  is  that  the  consideration  of  a  deed  can- 
not be  inquired  into.  This  reason  does  not  prevail  in  Pennsylvania  : 
here  the  consideration  is  open  for  inquiry  in  our  courts  of  law :  in 
England  in  equity  only  can  this  be  done;  and  it  would  be  against 
mercantile  policy  to  allow  the  funds  of  the  firm  to  be  hung  up  until 
this  question  could  be  decided  in  equity.  And  in  England  Lord 
Mansfield  held  in  a  case  at  Nisi  Prius,  it  is  true,  that  whore  the 
debt  was  a  partnership  debt,  one  partner  may  give  a  bond  for  it. 
binding  on  the  firm.  But  if  the  assent  of  the  partners  is  given, 
there  is  an  end  of  all  reason  for  the  rule.  It  is  clear  that  where 
the  partner  is  present  when  his  copartner  executes  a  deed  in  the 
name  of  both,  although  there  is  no  evidence  of  express  assent,  both 
are  bound.  Here  the  authority  is  by  parol,  and  the  assent  is 
inferred  from  the  presence  and  silence  of  the  partner.  It  estab- 

1  P.  &  W.— 19 


290  SUPREME  COURT  [Lancaster 

[Hart  r.  Withers.] 

lishes  that  assent  may  be  shown  by  proof  of  circumstances.  This 
being  established,  it  is  manifest  that  circumstances  necessary  to  evi- 
dence such  assent  will  be  as  various  as  the  transactions  of  men  are 
diversified;  and  the  question  must  be  submitted  to  the  sound  dis- 
cretion of  the  jury.  Mere  presence  is  held  to  be  sufficient  evidence 
of  assent ;  other  circumstances  may  exist  to  demonstrate  it  more 
satisfactorily  ;  and  it  would  be  incongruous  to  say  that  actual 
presence  alone  is  sufficient.  One  may  seal  for  many,  and  if  all 
consent,  it  is  the  seal  of  all,  whether  there  be  one  or  many  seals. 
It  is  the  consent,  then,  and  not  the  manual  operation  of  sealing, 
which  makes  the  instrument:  Randall  v.  Van  Yechten,  11*  Johns. 
R.  60.  In  this  case  there  was  a  mere  resolve  of  the  corporation  to 
pay  3">00  on  the  contract,  and  it  was  held  such  evidence  of  assent 
sis  would  bind  the  corporation.  The  evidence  of  assent  is  much 
stronger  in  the  case  now  before  the  court.  He  referred  also  to 
Buchannan  v.  Curry,  10  Johns.  R.  137.  Although  the  case  in  19 
Johns.  R.  513  is  a  case  of  contribution,  the  whole  court  went  upon 
the  principle  that  subsequent  ratification  and  assent  were  equivalent 
to  actual  execution  by  all  the  partners.  But  the  agreement  to  try 
on  the  merits  controls  the  defence,  and  excludes  the  defendants 
from  ground  purely  technical,  and  stripped  of  all  equity. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  law  of  partnership  is  part  of  the  law  mer- 
chant which  has  respect  exclusively  to  the  business  of  commerce  ; 
and  as  sealed  instruments  do  not  ordinarily  enter  into  it,  the  author- 
ity of  a  partner  being  limited  to  the  scope  of  the  trade,  is  held  to 
be  incompetent  to  the  execution  of  them.  They  may,  indeed,  be 
a  partnership  to  carry  on  a  business  not  purely  commercial  ;  still, 
however,  the  authority  of  the  partners  is  regulated  by  the  usages 
of  trade.  The  measure  of  this  authority  allowed  by  the  law  mer- 
chant, being  graduated  to  the  exigencies  of  commerce  by  experi- 
ence, is  the  wholesome  and  convenient  one ;  nor  ought  we,  by  an 
apparent  hardship  to  be  drawn  into  a  desire  to  enlarge  it.  Un- 
doubtedly the  partnership  had  the  benefit  of  the  plaintiff's  wood, 
but  he  thought  fit  to  furnish  it  on  separate  account ;  and  even  if  he 
supposed  in  point  of  law  that  the  covenant  of  the  party  who  sealed 
the  deed  bound  all  the  defendants,  yet  that,  as  we  have  lately  de- 
termined in  Moser  r.  Libenguth,  '2  Rawle42H,  is  riot  such  a  mistake 
as  would  entitle  him  to  equitable  relief;  much  less  can  we.  on  the 
ground  of  an  equity  between  the  parties  themselves,  say  that  an 
instrument  is  a  deed  in  equity,  which  is  not  a  deed  at  law.  That 
even  in  a  court  of  plenary  chancery  powers  will  interpose  for"  or 
against  a  stranger  on  the  foot  of  such  an  equity,  admits  of  more 
than  a  doubt.  Skinner  r.  Dayton  is  not  that  case,  and  I  cite  it 
merely  to  dissent  from  a  point  of  doctrine  asserted  in  it  on  the 
authority  of  Ball  v.  Dunsterville,  4  Term  R.  313,  that  an  authority 


May  1830.]  OF  PENNSYLVANIA.  291 

[Hart  v.  Withers.] 

to  one  partner  to  bind  the  others  by  deed,  may  in  some  cases  be  by 
parol.  I  am  at  a  loss  to  conceive  how  that  case  can  be  deemed  an 
authority  for  the  conclusion  deduced  from  it.  It  was  the  case  of  a 
bill  of  sale,  sealed  by  the  one  in  the  presence  of  the  other,  arid 
delivered  as  the  act  of  both  ;  and  it  is  therefore  clear  that  the 
validity  of  the  execution  was  not  supposed  to  depend  on  the  exist- 
ence of  a  previous  authority.  A  thing  done  in  the  presence  of 
another,  and  at  his  request,  is  his  immediate  act ;  as  for  instance 
the  administration  of  an  oath  in  the  presence  of  a  judicial  officer, 
who  by  the  by  cannot  appoint  a  deputy.  One  may  adopt  as  his  own 
a  seal  affixed  by  another  without  his  authority,  or  even  against  his 
will,  and  the  delivery,  being  his  immediate  act,  makes  the  instru- 
ment his  immediate  deed.  The  law  is  fixed  and  certain,  that  the 
authority  of  any  agent  to  bind  by  deed,  can,  in  no  case  or  under 
any  circumstances,  be  by  parol. 

But  it  is  alleged  that  the  plaintiff  was  entitled  to  treat  this  as  the 
covenant  of  all  the  defendants  by  their  agreement  in  the  cause.  He 
had  obtained  an  award  under  the  arbitration  act,  and  the  defend- 
ants, instead  of  appealing,  agreed  to  let  it  stand  as  a  security  for 
what,  if  anything  should  be  found  due,  on  terms  of  being  "let 
into  a  defence  on  the  merits,  without  being  in  ant/  deyrce  prejudiced 
by  the  award  in  their  defence."  This  word  "merits"  has  certainly 
no  technical  or  definite  meaning  ;  but  I  cannot  understand  how  a 
defendant  can  be  without  merits  who  cuts  up  the  plaintiff's  title  by 
the  roots  by  showing  that  he  never  entered  into  the  covenant,  which 
is  the  foundation  of  the  action.  Surely  the  avoidance  of  a  convey- 
ance by  the  Statute  of  Frauds,  would  be  matter  of  defence  on  the 
merits  in  an  ejectment.  What  was  the  object  of  this  agreement  '.' 
Plainly  to  place  the  defendants  in  the  situation  in  which  an  appeal 
would  have  placed  them  ;  and  in  consideration  of  the  expense  and 
trouble  thus  saved,  can  it  be  supposed  that  they  consented  to  yield 
the  whole  ground  of  their  defence,  or  at  least  an  impassible  part 
of  it  ?  It  seems  to  me  that  if  anything  were  wanting  to  shut  out 
such  a  conclusion,  it  would  be  found  in  the  stipulation  that  they 
were  in  no  degree  to  be  prejudiced  in  their  defence  by  the  award  ; 
in  other  words,  that  for  all  the  purposes  of  defence,  they  should  be 
put  in  the  attitude  in  which  they  stood  before  the  reference.  It  was 
in  their  power,  by  appealing,  to  obtain  the  advantage  of  this  de- 
fence, and  it  seems  €to  me  they  ought  not  to  be  deprived  of  it  by 
anything  less  than  a  precise  and  positive  relinquishment.  Hut 
even  if  the  agreement  were  such  as  it  is  supposed  to  be.  the  effect 
of  it  was  waived  by  taking  issue  on  the  plea  of  nun  t'#t  J\i<'tum 
instead  of  moving  to  have  it  struck  out.  Having  thus  staked  his 
case  on  the  existence  of  a  fact,  the  plaintiff  could  not  afterwards 
object  to  any  evidence  which  was  pertinent  and  competent  to 
prove  it. 


202  SUPREME  COURT  [Lancaster 

[Hart  r.  Withers.] 

HUSTON,  J. — In  this  case  I  will  state  very  briefly  the  grounds  on 
which  I  cannot  concur  with  the  opinion  of  the  court. 

The  grounds  on  which  one  partner  is  not  permitted  to  bind  the 
other  by  deed  in  England  do  not  exist,  or  at  least  all  of  them  do 
not  exist  here.  They  are  1st,  That  the  consideration  of  a  deed 
cannot  be  inquired  into — here  it  can.  2d,  That  a  bond  will  bind 
the  lands  of  any  partner  who  has  lands  aftor  his  death — here  a 
common  note,  nay  account,  is  recovered  after  the  deatli  of  the  debtor 
out  of  land.  It  is  admitted  even  there  that  one  partner  may  bind 
another  by  bond  sealed  in  his  presence,  although  with  but  one  seal. 
This  must  be  solely  because  his  assent  is  clearly  proved  by  his  being 
present  and  agreeing,  not  dissenting;  now  I  cannot  see  why  assent 
clearly  proved  in  one  way  is  not  as  effectual  as  assent  clearly  proved 
in  another.  Here  the  offer  was  to  prove  that  each  of  the  part- 
ners, who  were  iron  masters  and  had  lands  in  partnership,  as  well 
as  chattels,  were  in  the  constant  habit  of  making  contracts  under 
seal,  which  were  ratified  by  the  others,  and  the  benefits  enjoyed 
by  them  ;  that  this  contract  on  the  face  of  it  for  wood  was  for  wood 
for  their  iron  works,  and  was  actually  used  at  them,  and  the  benefit 
enjoyed  by  them  all.  I  would  then  have  permitted  this  to  go  to 
the  jury,  and  if  they  found  n  clear  assent,  either  before  or  after, 
I  would  hold  them  bound.  One  partner  is  often  bound  in  equity 
differently  from  what  he  is  at  law,  because  he  has  received  the 
benefit:  Lang  r.  Keppele,  1  Binn.  1'2-j.  I  would  confine  the 
power  to  partnership  transactions,  and  to  property  which  came 
into  partnership,  and  was  enjoyed  by  them  under  a  contract  which 
they  knew  was  made  by  one  of  the  firm.  I  would  consider  the 
case  of  partners  whose  principal  property  was  real  estate,  as  more 
within  the  reason  of  what  I  have  said,  and  hold  them  bound  by 
lease,  and  other  agreements  affecting  lands,  wherever  the  whole 
company  knew  of.  acted  under  and  derived  advantage  from  such 
contract.  As  to  the  agreement  by  which  the  judgment  w;is  opened, 
and  to  try  on  the  merits,  whenever  any  person  applies  to  open  a 
judgment,  he  is  bound  to  state  all  the  objections  which  he  then 
has,  arid  every  rule  and  principle  arid  practice  requires  this.  No 
person  should  be  permitted  to  make  successively  several  objections, 
all  of  which  existed  at  the  same  time.  1  would  consider  (leorge  as 
waiving  all  objections,  except  the  one  stated  in  his  affidavit,  viz., 
want  of  notice,  and  opportunity  of  appearing  before  the  referees. 
But  further,  it  was  not  agreed  to  set  aside  the  judgment,  it  stood  as 
a  judgment,  and  the  trial  was  only  to  ascertain  the  amount.  The 
article  of  agreement  was  merged  in  the  judgment,  and  ought  to 
have  been  admitted  to  prove  the  price  and  quantity  of  wood  and 
to  show  that  no  receipts  were  endorsed  on  it.  I  am  perfectly  satis- 
fied the  result  of  this  agreement  is  directly  contrary  to  the  under- 
standing of  at  least  one  of  the  parties  to  it,  and  to  what  was  intended 


May  1830.]  OF  PENNSYLVANIA.  293 

[Hart  v.  Withers.] 

by  both  when  it  was  made:  or  if  one  intended  this  plea,  such  inten- 
tion was  not  made  known.  1  would  on  the  agreement  consider  this 
objection  as  not  allowable 

ItouEiis,  J.,  dissented  on  the  point  as  to  the  effect  of  the  agree- 
ment to  open  the  judgment,  and  let  the  defendants  into  a  trial  on 
the  merits. 

Judgment  affirmed. 

Referred  to,  infra,  353,  &o.,  7  W.  333  ;   1  Jones  497  ;   1  II.  403. 
Followed,  5  W.  161. 


Snyder  against  Zimmerman  et  al. 

IN    ERROR. 

The  bail  on  an  appeal  from  the  award  of  arbitrators,  under  the  Compul- 
sory Arbitration  Act,  is  not  subject  to  the  practice  in  reference  to  special 
bail.  Where  the  appellee  is  dissatisfied  with  the  bail,  his  course  is  to  apply 
to  the  court  for  a  rule  for  additional  bail,  and  the  opinion  of  the  court  that 
the  bail  is  sufficient,  is  conclusive  ;  he  cannot  treat  it  as  a  nullity,  and  issue 
execution. 

Hail  may  be  dispensed  with  altogether,  and  suffering  a  term  to  pass  with- 
out objection  on  the  part  of  the  appellee,  dispenses  with  it. 

WRIT  of  error  to  the  District  Court  for  the  city  and  county  of 
Lancaster. 

The  case  was  this:  on  the  1st  of  November  1824,  an  award 
under  the  Compulsory  Arbitration  Act,  was  filed  against  the  defend- 
ants for  $390.92  ;  they  appealed,  and  Richard  Ream  entered  into 
the  recognisance  as  their  security  ;  on  the  27th  of  November,  the 
plaintiff's  attorney  excepted  to  the  bail  entered  ;  on  the  1st  Decem- 
ber notice  of  the  exception  was  proved  and  filed.  On  the  »»th  of 
December  a  new  recognisance  was  entered  into  by  Curtis  Ream  as 
security;  on  the  18th  December  the  plaintiff  excepted  to  Curtis 
Ream  as  bail.  On  the  18th  notice  of  tins  exception  was  given,  and 
on  the  olst  Curtis  Roam  made  an  affidavit,  which  was  endorsed  on 
the  back  of  his  recognisance,  "that  lie  was  a  freeholder  worth  Ssoi) 
after  paying  all  his  debts."  This  affidavit  was  made  before  the 
mayor  of  the  city  of  Lancaster.  The  plaintiff,  disregarding  the 
appeal,  issued  a  fi.  fa.  to  June  term  I82f>,  on  which  a  levy  was 
made  on  the  personal  and  real  estate  of  the  defendants,  who  gave 
notice  to  the  sheriff  not  to  sell.  The  sheriff  sold  the  personal  pro- 
perty, and  the  loth  August  1825,  held  an  inquisition  on  the  real 
estate,  and  on  the  28th  of  August  sold  it.  On  the  otli  of  December 


294  SUPREME  COURT  [Lancaster 

[Snyder  v.  Zimmerman.] 

1825,  a  rule  to  show  cause  why  the  fi.  fa.,  £c.,  should  not  he  set 
aside,  was  obtained,  and  on  the  17th  June  1826,  the  rule  was  made 
absolute  and  restitution  awarded. 

The  District  Court  sits  on  the  second  Monday  in  June  and  on 
the  first  Monday  of  September.  This  writ  of  error  was  taken  by 
the  plaintiff,  who  now  assigned  for  error  that 

1st.  The  award  of  the  1st  of  November  1824  was  not  appealed 
from,  the  bail  attempted  to  be  given  being  entered  without  notice 
to  the  plaintiff,  and  therefore  a  nullity. 

2d.  The  bail  entered  after  the  exception  taken  to  the  first  bail 
was  without  notice  to  the  plaintiff,  and  without  justification,  and 
therefore  illegal  and  void. 

3d.  The  mayor  of  the  city  of  Lancaster  had  no  authority  to  take 
the  affidavit  made  by  the  bail,  and  it  did  not  therefore  amount  to  a 
justification. 

Ifopkins,  for  the  plaintiff  in  error,  contended  that  bail  on  appeal 
from  the  award  of  arbitrators  should  not  be  permitted  to  be  entered 
without  notice  to  the  appellee.  Under  the  Act  of  Assembly,  Purd. 
Dig.  20,  certain  requisites  are  required  to  enter  an  appeal,  and 
these  must  be  literally  observed.  The  omission  of  the  word  firmly, 
in  the  oath  required  upon  the  appeal  has  been  decided  to  be  fatal 
to  it.  It  is  of  much  more  consequence  that  sufficient  bail  should  be 
entered.  The  party  to  be  affected  has  an  undoubted  right  to  call 
in  question  their  sufficiency.  But  how  can  he  have  the  exercise  of 
this  right  unless  notice  to  him  be  required.  The  prothonotary  is 
but  a  ministerial  officer,  and  bound  to  receive  the  bail  offered  de 
benc  cssf.  If  the  bail  is  not  entered,  it  is  the  duty  of  the  prothon- 
otary, at  the  request  of  the  party  in  favor  of  whom  the  award  is,  to 
issue  execution.  lie  referred  to  Donaldson  v.  Cunningham,  13  S. 
&  R.  243. 

The  case  of  Jones  v.  Badger,  5  Binn.  461,  is  not  like  this  case, 
for  there  the  appellants  gave  notice  that  the  cognisors  would  answer 
any  questions.  Without  this  notice,  the  appellant  may  enter  whom 
he  pleases,  and  the  provision  of  the  Act  of  Assembly  for  sufficient 
security  is  inoperative.  But  after  notice  of  exception,  at  all  events 
new  bail  cannot  be  entered  without  such  notice. 

In  England  the  party  must  give  notice  of  entering  special  bail, 
and  without  such  notice  the  bail  is  a  nullity  :  1  Archb.  Prac.  80. 
Here,  after  exception  had  been  taken,  the  new  security,  without 
notice  to  the  party,  justified  before  the  mayor,  who  had  no  au- 
thority, to  receive  such  justification.  Bail  must  be  taken  before  a 
person  having  competent  authority  before  the  court,  a  judge  or  a 
commissioner  of  bail :  Jones  r.  Badger,  5  Binn.  462.  In  the  in- 
cipient stages  of  a  cause,  if  notice  is  not  given  of  entering  special 
bail,  the  plaintiff  may  sue  the  bail  bond,  and  in  error,  if  the  bail 


May  1830.]  OF  PENNSYLVANIA.  295 

[Snyder  v.  Zimmennan.] 

do  not  justify  upon  notice,  the  bail  may  be  treated  as  a  nullity,  and 
execution  issued. 

Porter  and  Buchanan,  for  the  defendants  in  error,  were  requested 
by  the  court  to  confine  their  argument  to  the  third  error  assigned. 

They  argued  that  whether  the  mayor  had  the  power  to  administer 
this  oath  to  the  bail  or  not,  was  a  matter  of  indifference.  The 
appeal  was  regularly  entered,  arid  if  the  appellee  were  dissatisfied, 
he  should  have  applied  to  the  court;  he  could  not  disregard  the 
appeal  and  issue  execution.  The  right  of  appeal  is  liberally  con- 
strued to  preserve  the  trial  by  jury,  which  the  arbitration  law  in 
some  sort  impugns.  By  the  terms  of  the  Act  of  Assembly,  no 
notice  is  required  of  entering  bail  to  obtain  an  appeal,  and  it  has 
never  been  the  practice  to  give  such  notice. 

The  rules  as  to  the  mode  of  entering  special  bail  are  not  applica- 
ble to  entering  bail  for  an  appeal  under  the  Arbitration  Act.  This 
was  long  ago  decided  in  Jones  v.  Badger.  But  the  justification 
was  well  taken  before  the  mayor.  Administering  an  oath,  both 
here  and  in  England,  is  a  ministerial  act,  and  the  mayor  had  power 
to  administer  oaths,  which  is  enough.  They  referred  also  to  Means 
v.  Trout,  ID  S.  &  11.  349. 

In  case  the  appellee  was  dissatisfied,  application  should  have 
been  made  to  the  court  at  the  next  term  after  exception  taken  : 
Zeiglcr  v.  Fowler,  3  S.  &  11.  238  ;  Cochran  v.  Parker,  G  Id.  54'J. 
Here  he  suffered  that  term  to  pass,  and  comes  too  late  upon  this 
exception. 

This  writ  of  error  is  not  well  taken,  and  should  have  been 
quashed;  an  appeal  is  still  pending,  and  there  is  no  final  judgment 
in  the  case  (Gardner  r.  Lefere,  1  P.  &  W.  73),  and  the  execution 
could  not  be  issued  in  the  face  of  the  appeal. 

Hopkins,  in  reply. — We  excepted  to  the  bail,  and  it  was  for  them 
to  justify ;  and  they  should  have  done  this  by  the  next  term,  and  it 
is  they  who  have  slipped  their  time. 

The  mayor  has  no  greater  or  other  power  in  this  respect  than  a 
justice  of  the  peace ;  and  if  a  justice  has  the  power  to  take  the 
affidavit  of  justification  on  exception  to  special  bail,  he  must  hear 
and  determine  the  question  judicially,  which  must  be  incongruous. 

Two  terms  elapsed  after  execution  was  issued  before  application 
to  the  court  to  set  it  aside;  such  application  was  then  out  of  time. 

A  motion  to  quash  the  writ  of  error  cannot  now  be  entertained. 
After  joinder  in  error  such  motion  is  never  received. 

The  opinion  of  the  court  was  delivered  by 

GlUSON,  0.  J. — The  bail  in  an  appeal  is  not  subject  to  the  prac- 
tice in  reference  to  special  bail,  \\here  the  appellee  is  dissatisfied, 


296  SUPREME  COURT  [Lancaster 

[Snyder  v.  Zimmerman.] 

his  course  is  a  rule  for  additional  bail ;  but  where,  as  here,  the 
court  is  of  opinion  that  the  bail  is  sufficient,  there  is  an  end  of  the 
matter.  The  allegation  that  the  justification  was  before  an  alder- 
man, is  inaccurate  in  point  of  fact.  The  affidavit  of  sufficiency 
was  merely  sworn  to  before  the  alderman,  who  did  nothing  more 
than  administer  the  oath,  as  under  his  general  powers  he  might 
well  do.  But  even  were  the  appeal  erroneously  taken,  the  appellee 
precluded  himself  from  insisting  on  it.  Whether  erroneously  or 
not,  it  was  actually  taken,  and  could  not  be  treated  as  a  nullity, 
without  having  been  formally  quashed.  Bail  may  be  dispensed 
with  altogether,  and  it  has  been  repeatedly  determined  that  the 
appellee  does  dispense  with  it  by  suffering  a  term  to  pass  without 
objection.  Here  there  was  an  appeal  actually  taken  which  is  still 
depending  ;  and  the  execution  having  issued  without  a  valid  or  ex- 
isting judgment  to  support  it,  was  properly  quashed. 

Order  of  the  Common  Pleas  affirmed. 


May  1830.]  OF  PENNSYLVANIA.  297 


McKim  et  al.  against  Souiers. 

IN    ERROR. 

Where  the  plaintiff  interrogated  defendant's  witness  as  to  a  conversation 
which  had  taken  place  between  him  and  a  certain  W.  B. ;  and  the  witness 
stated  the  conversation,  by  which  it  appeared  that  he  had  not  told  W.  B.  all 
that  he  related  in  court,  and  the  plaintiff  then  asked  him  "why  did  you  not 
tell  the  whole  truth  to  W.  B.  ?"  and  the  witness  replied,  "  I  kept  it  back 
because  I  was  living  in  plaintiff's  house,  as  tenant,  and  if  I  had  told  it, 
he  would  have  thrown  me  out  neck  and  heels,  he  would  have  knocked  my 
brains  out.  As  soon  as  he  did  know  it,  he  took  out  a  landlord's  warrant," 
and  the  plaintiff  then  called  W.  B.  and  by  him  gave  evidence  to  contradict  the 
statement  made  of  the  conversation.  Ilehl,  that  it  was  competent  to  the 
defendant  to  give  evidence  that  the  plaintiff  was  a  quarrelsome  and  dangerous 
man  to  those  he  had  a  prejudice  against. 

Wherever  a  person  has  color  of  authority,  and  acts  under  a  commission  from 
the  appointing  power,  but  which,  it  may  be  alleged,  has  been  forfeited  by 
some  act,  perhaps  of  an  equivocal  nature,  in  all  such  cases  the  validity  of  the 
commission  cannot  be  examined  in  a  suit  in  which  he  is  not  a  party.  If  a 
person  usurp  an  authority  to  which  he  has  no  title  or  color  of  title,  his  acts 
would  be  simply  void.  But  a  colorable  title  to  an  office  can  beexamined  only 
in  a  mode  in  which  the  officer  is  a  party,  and  before  the  proper  tribunal,  the 
Supreme  Court,  in  whom  by  Act  of  Assembly  all  the  authority  of  the  King's 
Bench  is  vested.  It  is  not,  therefore,  competent,  when  a  deposition  is  offered 
in  evidence,  and  the  commission  of  the  justice  of  the  peace,  before  whom  it 
was  taken,  is  shown,  to  prove  that,  after  he  was  commissioned,  he  removed 
out  of-'  his  proper  county,  where  the  deposition  was  taken,  and  thereby  vacated 
his  office. 

When  a  party  has  an  opportunity  of  being  present  at  the  taking  of  a  deposi- 
tion, and  does  not  choose  to  avail  himself  of  it,  he  shall  not  afterwards  l>e 
permitted  to  except  to  a  leading  question,  and  answer  in  such  deposition,  or 
to  make  formal  objections  against  it.  When  a  party  attends,  and  objects  to  the 
form  of  the  question,  then  if  the  opposite  party  persists,  he  does  it  at  his  peril. 

ERKOR  to  the  District  Court  for  the  city  and  county  of  Lan- 
caster. 

On  the  trial  of  this  cause,  the  defendant,  who  is  also  the  defend- 
ant in  error,  for  the  purpose  of  proving  the  payment  of  §1:20  to  the 
plaintiffs,  examined  a  witness  of  the  name  of  Jeffries  Marsh,  who, 
in  his  examination  in  chief,  testified  to  the  fact  of  the  payment. 
For  the  purpose  of  destroying  the  testimony  of  the  witness,  the 
plaintiffs  interrogated  him,  on  his  cross-examination,  as  to  a  con- 
versation which  had  taken  place  between  him  and  a  certain  Wallace 
Boyd.  The  witness  stated  the  conversation,  by  which  it  appeared, 
that  he  had  not  told  to  Boyd,  in  that  conversation,  all  that  he 
related  in  court.  Whereupon  the  plaintiff's  counsel  asked  him  the 
following  question:  "Why  did  you  not  tell  the  whole  truth  to 
Wallace  Boyd  ?"  To  which  he  replied  as  follows  :  '•  I  was  not  on 
ray  oath,  and  I  was  not  bound  to  confess  to  Wallace  Boyd.  The 
reason  1  kept  it  back  was,  I  was  living  in  Win.  McKim's  house  as 


298  SUPREME  COURT  [Lancaster 

[McKim  c.  Somers.j 

tenant,  and  if  I  had  told  it,  he  would  have  thrown  me  out  neck  and 
heels.  If  I  had  begun  that  kind  of  talk,  he  would  have  knocked 
mv  brains  out ;  you  would  not  have  been  troubled  with  judge  and 
jury.  As  soon  as  he  did  know  it,  he  took  out  a  landlord's  war- 
rant." After  the  defendant  had  gone  through  his  testimony  in 
chief  and  rested,  the  plaintiff  called  Wallace  Boyd  for  the  purpose, 
among  other  things,  of  contradicting  the  statement  made  by  Jef- 
fries Si  are  h  of  the  conversation  which  he  alleged  he  had  had  with 
Wallace  Boyd.  The  defendant  then  offered  to  prove  by  Boyd, 
that  McKim  was  a  quarrelsome  and  dangerous  man  to  those  he  had 
a  prejudice  against  ;  to  this  testimony,  which  was  received  by  the 
court,  the  plaintiff  excepted.  The  plaintiff  also  objected  to  the 
admission  of  a  deposition  in  evidence,  on  the  ground  that  Joel  C. 
Bailey,  the  person  before  whom  it  was  taken,  was  not  a  justice  of 
the  peace.  On  the  objection  being  made,  the  defendant  read- in  evi- 
dence a  commission  from  the  governor,  bearing  date  the  28th  March 
1821.  The  plaintiff  then  offered  to  prove  "that  since  the  date  of 
the  commission  the  said  Bailey  removed  from  the  county  of  Ches- 

•/  V 

ter"  (in  which  he  had  been  commissioned  and  where  the  deposition 
had  been  taken),  "to  the  city  of  Philadelphia,  that  he  rented  a 
tavern  in  the  city,  and  kept  a  tavern  there  for  eighteen  months, 
and  afterwards  returned  to  reside  in  Chester  county  ;  that  during 
his  residence  in  Philadelphia,  another  justice  was  appointed  in  his 
stead,  in  the  district  where  Bailey  had  been  a  justice."  The  court 
refused  to  receive  this  testimony,  and  admitted  the  deposition,  and 
sealed  a  second  bill  of  exception.  The  plaintiffs,  who  were  present 
when  the  depositiou  was  taken,  but  objected  to  its  being  taken,  on 
the  ground  that  Bailey  had  no  authority  to  take  it,  and  took  no 
part  in  taking  it,  objected  to  the  admission  in  evidence  of  this  ques- 
tion, and  answer  in  the  deposition.  Question  by  defendant,  ''Did 
Captain  McKim  tell  you  that  he  had  received  $100  of  me  in  Wil- 
mington and  Brandywine  money?"  Answer  "Yes."  The  court 
overruled  the  objection  and  the  bill  thereupon  sealed  constituted 
the  third  bill  of  exceptions.  The  plaintiffs  in  error,  who  were  also 
plaintiffs  below,  now  assigned  error  in  each  of  these  bills  of  ex- 
ceptions. 

Parke,  for  the  plaintiff  in  error. — The  plaintiffs  did  not  attempt 
to  disprove  the  reason  why  the  witness  had  not  told  Boyd  the  whole 
truth,  the  evidence  given  by  them  went  to  impair  his  testimony  on 
other  grounds.  The  testimony  then  as  to  the  character  of  McKim, 
was  not  in  contradiction  to  any  evidence  given  by  the  plaintiffs,  but 
wholly  irrelevant,  and  introduced  to  fortifv  a  witness,  who  as  to 
this  point  had  not  been  attacked  ;  and  this  too  in  violation  of  the 
well-established  rule  that  the  character  of  the  party  in  a  civil  suit 
cannot  be  given  in  evidence:  Anderson  r.  Long,  10  S.  &  It.  GO; 
v.  Gilkeson,  ;">  Id.  352. 


May  1830.]  OF  PENNSYLVANIA.  299 

[McKiin  t'.  Somers.] 

Second  bill  of  exception.  The  commission  of  a  justice  of  the 
peace  is  vacated  by  his  removal  out  of  the  county  (within  which  lie 
is  commissioned),  animo  reaidendi.  The  county  bounds  the  juris- 
diction of  a  justice,  the  district  for  which  he  is  commissioned  is  his 
residence  :  Respublica  v.  McClean,  4  Yeates  399 ;  Commonwealth 
v.  Sheriff  of  Northumberland,  4  S.  &  R.  275.  It  was  proper  to 
prove  that  the  justice  had  by  removal  vacated  his  commission,  and 
had  consequently  no  power  to  administer  the  oath  to  the  witness : 
Berks  County  v.  lloss,  3  Binn.  539.  The  deposition  could  only  be 
taken  by  a  person  having  that  power :  Keller  v.  Nutz,  5  S.  £  11. 
240. 

The  defendant  is  not  helped  by  the  distinction  between  officers 
de  facto  and  de  jure.  There  cannot  be  a  justice  of  the  peace  de 
facto,  he  exists  de  jure,  or  not  at  all.  An  officer  de  facto  comes  in 
by  color  of  right,  in  which  case  his  office  is  vacated  on  a  quo  war- 
ranto.  A  bare  swearing  in  and  acting  does  not  make  a  man  an 
officer  de  facto,  and  unless  there  is  some  form  of  election,  he  is  a 
mere  usurper:  Kex  v.  Lisle,  2  Strange  1090;  Andrews  163; 
Baird  v.  Bank  of  Washington,  11  S.  &  R.  411.  If  a  justice 
resigns  he  ceases  to  be  a  justice,  and  any  act  done  by  him  after 
such  resignation,  would  be  the  act  of  a  mere  usurper.  His  removal 
from  his  proper  county  has  the  same  effect,  it  vacates  his  office  de 
facto  and  de  jure;  after  this  he  could  not  be  sued  for  any  act  done 
as  an  officer,  for  which,  otherwise,  he  would  have  been  officially 
responsible  ;  nor  would  the  individual  who  made  a  deposition  before 
him,  be  indictable  for  perjury  in  case  the  deposition  was  false. 
Public  policy  too,  requires  that  in  this  country,  where  officers  are 
continually  changing  by  election  or  appointment,  that  their  power 
should  cease  as  to  all  the  world,  when  they  go  out  of  office. 

As  to  the  third  bill  of  exception,  he  contended  that  where  the 
party  I'efuses  to  take  any  part  in  taking  a  deposition,  he  must  be 
considered  as  absent,  and  in  that  case,  if  a  leading  question  be  put 
and  answered,  and  received  in  evidence  it  would  be  error. 

W.  Hopkins  and  Hopkins,  for  the  defendant  in  error,  wore 
desired  by  the  court  to  confine  their  argument  to  the  second  bill  of 
exceptions.  \\  hether  the  justice  of  the  peace,  before  whom  the 
deposition  was  taken,  had  de  jure  a  right  to  exercise  the  powi-rs  of 
that  office,  was  not  open  for  inquiry  in  a  collateral  proceeding.  It 
was  enough  to  show,  as  was  done  by  producing  his  commission,  that 
he  acted  by  color  of  office,  in  the  district  for  which  he  had  been 
appointed.  Indeed  as  to  third  persons,  it  is  enough  to  prove  that 
he  acted  as  a  public  officer,  without  producing  his  appointment  : 
Porter  r.  Luther,  3  Johns.  R.  431.  He  is  an  officer  de  l;u-u>,  ami 
that  is  all  we  were  required  to  show,  ;md  where  such  officer  claims 
to  exercise  his  office,  his  right  cannot  bo  brought  into  question  in  a 
proceeding  to  which  he  is  not  a  party:  Commonwealth  r.  Fouler, 


300  SUPREME  COURT  [Lancaster 

[McKim  v.  Somers.] 

10  Mass.  200.  In  all  collateral  controversies,  in  which  the  officer 
de  facto  is  not  a  party,  his  acts  are  conclusive  as  to  his  authority  : 
Parker  v.  Luffborough,  10  S.  &  II.  249 ;  Baird  v.  Bank  of  Wash- 
ington, 11  Id.  411;  Kiddle  r.  County  of  Bedford,  7  Id.  386.  The 
attempt  in  a  collateral  way  to  inquire  on  the  part  of  third  persons 
into  the  complicated  question,  as  to  the  right  particularly  of  a 
judicial  officer  to  exercise  his  office,  must  be  always  abortive  as 
respects  the  officer,  who  would  not  be  bound  by  a  proceeding  in 
which  he  is  no  party,  and  productive  of  an  obstruction  of  justice, 
as  it  regards  others  who  are  usually  ignorant  of  the  precise  circum- 
stances in  regard  to  the  authority  claimed  and  exercised.  The  cases 
relied  on  by  the  plaintiffs  in  error,  are  cases  in  which  the  officer 
was  himself  a  party,  instituted  for  the  very  purpose  of  inquiring 
into  the  authority  by  which  he  claimed  the  office,  and  in  some  of 
these  cases  the  distinction  is  taken  between  such  direct  inquiry, 
and  where  it  is  made  in  a  collateral  proceeding.  In  the  former  the 
right  may  be  inquired  into,  in  the  latter  it  cannot. 

Buchanan,  in  reply. — The  question  put  to  the  witness  as  to  the 
reason  why  he  had  withheld  the  whole  truth  from  Boyd  was  a  per- 
tinent question,  and  the  answer  of  the  witness  was  uncontradicted, 
and  should  never  have  been  permitted  to  be  made  the  ground  of  an 
attack  upon  the  plaintiff,  calculated  to  have  an  influence  upon  the 
jury,  wholly  distinct  from  the  object  professed  :  Starkie's  Ev.  4 
pi.  300.  Neither  reputation  of  character  nor  facts  establishing 
character  are  proper  for  inquiry,  even  although  the  character  of  the 
party  is  incidental  in  issue,  bv  charging  a  fraud  upon  him  :  Phil. 
Ev.  13!).  Were  it  otherwise,  an  endless  inquiry  would  be  opened. 
If  the  party  could  get  a  witness  to  say  his  adversary  was  a  quarrel- 
some man,  he  may,  to  corroborate  his  witness,  according  to  the 
doctrine  established  by  the  court  below,  go  into  proof  that  lie  is 
quarrelsome,  and  then  an  interminable  investigation  is  open  as  to 
circumstances  of  provocation,  the  measure  of  revenge,  or  the  nature 
of  transactions  involving  the  acts  of  his  whole  life,  and  leading  off 
from  the  issue  between  the  parties. 

Second  bill  of  exception.  There  was  no  attempt  on  the  part 
of  the  defendants  to  prove  that  the  justice  was  an  acting  justice 
of  the  peace,  but  he  relied  on  his  commission  to  establish  that 
de  jure  he  was  such  justice.  If  it  had  been  proved  that  he  acted 
as  a  justice,  the  case  might  fall  within  the  principle  of  some  of 
the  cases  cited,  giving  to  his  acts  the  character  of  those  of  an 
officer  de  facto.  But  that  point  is  not  presented,  but  the  inquiry 
is,  whether  an  individual,  who  does  a  single  act  as  a  judicial  officer, 
shall  be  considered  as  having  full  power  to  do  that  act,  without 
any  right  on  the  part  of  those  who  are  affected  by  it  to  inquire 
into  his  authority.  It  is  an  important  right  to  have  witnesses  ex- 
amined in  open  court  in  the  presence  of  the  court  and  jury;  but 


May  1830.]  OF  PENNSYLVANIA.  301 

[McKim  v.  Somcrs.] 

to  permit  a  deposition  to  be  taken  by  a  person  who  is  without 
power  to  administer  an  oath,  and  as  a  consequence,  that  the  witness 
shall  not  be  responsible  for  false  swearing  in  taking  that  oath,  is  a 
monstrous  violation  of  the  wholesome  principles  of  the  common 
law. 

The  cases  relied  on  by  the  defendants  in  error  are  cases  of  minis- 
terial officers,  whose  authority  had  been  conferred,  but  some  requi- 
sites omitted  ;  as  to  third  persons,  their  acts  are  not  open  to  inquiry. 
But  in  no  case  has  it  been  held,  that  it  may  not  be  shown  that  a 
person  claiming  to  exercise  a  judicial  office  has  no  authority  to  do 
so,  and  that  the  fact  of  his  acting  is  conclusive  upon  third  persons 
as  to  his  right  to  act:  4  Starkie  Ev.  4,  pi.  1135. 

On  the  third  bill  of  exceptions  he  referred  to  Withers  v.  Gillespv, 
7  S.  &  R.  10;  Slieclcr  v.  Speer,  3  Binn.  132;  Strickler  v.  Todd, 
10  S.  &  R.  63. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J.  (who  recapitulated  the  facts  of  the  case) — When  it 
is  recollected  that  Jeffries  Marsh  was  a  principal  witness  for  the 
defendant,  and  that  the  plaintiff  had  attempted  to  impeach  his 
veracity  on  his  cross-examination,  and  by  the  evidence  of  a  witness 
to  contradict  him,  it  became  a  matter  of  vital  importance  to  the 
defendant  and  the  witness  himself  that  he  should  be  sustained.  It 
is  in  vain  for  the  plaintiff's  counsel  to  say  that  they  had  not 
attacked  the  character  of  the  defendant's  witness,  for  this  is 
expressly  contradicted  by  the  bill  of  exceptions.  Marsh  says  the 
reason  he  did  not  tell  to  Wallace  Boyd  what  he  knew  of  the  pay- 
ment was  a  fear  arising  from  the  violent  temper  of  William  McKim. 
And  this  reason,  if  true  to  the  extent  stated,  would  account  satis- 
factorily to  the  jury  for  the  suppression  of  part  of  what  he  knew  in 
relation  to  the  alleged  payment.  It  became  then  important  that 
facts  should  not  rest  upon  his  testimony  alone;  and  there  can  be 
no  doubt  that  the  defendant  would  have  a  right  to  fortify  his  case 
by  proving  by  other  witnesses  the  truth  of  the  facts  stated  by  him, 
as  reasons  for  his  conduct.  For  instance,  it  would  have  been  com- 
petent for  him  to  show  that  the  witness  was  living  at  the  tinn-  in 
McKinfs  house  as  tenant,  and  also  to  prove  that  as  soon  as  McKim 
knew  he  had  spoken  about  it,  he  had  taken  out  a  landlord's  war- 
rant. But  it  is  said  that  the  evidence  which  is  admitted  is  putting 
the  plaintiff's  character  in  issue,  and  that  this  cannot  be  done  in  an 
action  of  assumpsit,  and  for  this  the  plaintiff's  counsel  have  cited 
J'hillips  and  Starkie.  No  person  pretends  to  dispute  the  general 
principle.  This  is  not  an  attempt  to  put  in  issue  the  character  of 
William  McKim,  but  to  prove  from  the  knowledge  of  the  plaintiff's 
witness  himself  the  fact  that  William  McKim  was  a  quarrelsome 
and  dangerous  man  to  those  he  had  a  prejudice  against.  And  this 
evidence,  it  will  be  recollected,  is  given  to  shield  the  character  of  a 


302  SUPREME  COURT  {Lancaster 

[McKim  r.  Somers.] 

witness  who  had  been  attacked  by  the  plaintiff.  If  this  evidence 
leads  to  an  inquiry  which  might  affect  the  standing  of  McKim,  he 
has  his  own  counsel  to  thank  for  it,  for  it  was  in  answer  to  an 
inquiry  from  them  that  he  gave  the  reason  why  he  did  not  state  to 
Wallace  Bovd  all  he  knew  of  the  transaction.  Had  the  counsel  for 
the  defendant  omitted  to  prove  the  temper  and  disposition  of 
McKim,  no  doubt  the  jury  would  have  been  told  that  it  was  a  mere 
excuse,  totally  untrue,  resting  on  his  own  statement,  and  perfectly 
ridiculous  in  it.self.  The  temper  of  McKim  gave  probability  to  the 
reason  assigned  by  the  witness,  and  in  this  point  of  view  it  was 
material  that  no  doubt  should  rest  upon  it.  It  is  too  much  the 
habit  of  counsel  to  abuse  and  villify  witnesses.  It  is  the  duty  of 
the  court  to  protect  them  by  affording  them  some  latitude  to 
defend  themselves  from  the  slanders  which  are  often  heaped  upon 
them.  Under  the  peculiar  circumstances  of  this  case,  we  are 
clearly  of  opinion  that  the  testimony  was  rightly  admitted  by 
the  court. 

The  plaintiff  also  objected  to  the  admission  of  a  deposition  in 
evidence,  on  the  ground  that  Joel  C.  Bailey,  the  person  before 
whom  the  deposition  was  taken,  was  not  a  justice  of  the  peace. 
Whether  the  facts  alleged  in  the  bill  of  exceptions  would  vacate 
the  commission  of  the  justice,  we  are  not  called  on  to  determine. 
Whenever  an  information  is  filed,  it  will  be  time  enough  to 
determine  the  question.  At  present,  we  would  think  it  improper 
cvfii  to  intimate  an  opinion.  And  this  is  not  accorded  to  Mr. 
Bailey  as  a  favor,  but  is  nothing  more  than  common  even-handed 
justice  that  he  should  have  an  opportunity  of  being  heard,  and  be 
permitted,  if  occasion  should  require  it,  either  to  traverse  the  facts 
or  contradict  the  conclusions  of  law  attempted  to  be  drawn  from 
them.  It  would  be  the  height  of  injustice  if  we  were  now  to 
determine  or  even  suffer  his  right  to  hold  his  commission  to  be 
called  in  question,  in  a  cause  in  which  he  is  no  party  and  cannot 
be  heard.  The  counsel  for  the  defendant  objected  to  the  court 
going  into  the  question  whether  he  was  a  justice  de  jure  at  all.  and 
in  this  we  conceive  they  were  in  the  strict  line  of  their  duty.  They 
contended,  and  with  a  force  which  has  not  been  weakened  by  the 
reply,  that  it  was  sufficient  for  their  purpose  that  he  held  a  commis- 
«ion  from  competent  authority,  and  that  in  taking  the  deposition, 
which  is  an  official  act,  he  was  acting  in  the  district  for  which  he 
was  appointed;  that  this  constituted  him  a  justice  de  facto,  with  at 
least  colorable  authority ;  and  that  as  long  as  the  commission 
remained,  without  being  superseded  by  the  governor  or  vacated  by 
the  Supreme  Court,  the  validity  of  his  acts  could  not  be  ques- 
tioned. One  would  have  supposed  that  these  reasonable  objections 
would  have  been  entitled  to  some  respect.  For,  setting  aside  the 
extreme  injustice  of  impeaching  or  even  impairing  the  right  to 
an  office,  without  giving  an  opportunity  of  hearing  to  the  party 


May  1830.]  OF  PENNSYLVANIA.  303 

[McKim  v.  Somers.] 

principally  affected  by  the  decision,  the  inconvenience,  and  I  may 
add,  in  some  cases,  the  indelicacy  of  the  inquiry  would  be  intoler- 
able. If  the  plaintiffs  had  been  heard  in  this  preliminary  matter, 
the  opposite  party  would  have  been  permitted  to  controvert  the  facts 
by  the  introduction  of  testimony  on  their  part.  And  this  would 
open  a  scene  which  I  should  be  sorry  to  see  exhibited  in  a  court  of 
justice.  An  examination  would  ensue  before  the  court,  which  in 
some  cases  would  last  a  week,  whether  a  deposition  should  be  re- 
ceived in  a  cause  of  the  most  trifling  nature  and  amount.  As  the 
court  would  be  both  judge  and  jury,  the  inconvenience  of  this  novel 
doctrine  would  cause  them  to  pause  before  they  acceded  to  it.  If 
I  understood  the  counsel,  they  admitted  the  law  in  its  full  force  as 
respects  ministerial  officers,  but  denied  it  as  regards  judicial  officers. 
I  should  have  been  pleased  to  have  seen  some  authority  in  which 
the  distinction  is  taken  ;  the  reason  for  such  distinction  is  not  very 
apparent.  If  this  be  law.  as  regards  ministerial  officers,  which  may 
be  shown  by  a  host  of  authority.  I  say  a  fortiori  it  should  be 
so  held  in  the  case  of  judicial  officers.  The  law  is  founded  on 
policy  and  convenience,  reasons  which  apply  with  tenfold  force  to 
officers  of  the  latter  description.  The  constitutionality  of  the  laws 
establishing  the  several  District  Courts  of  this  state  has  been 
denied  by  some,  although  I  am  not  among  the  number.  Would  the 
Common  Pleas  of  Lancaster,  York  or  the  city  of  Philadelphia, 
have  a  right  to  call  in  question  the  validity  of  the  commissions  of 
the  judges  of  these  courts,  on  an  objection  to  the  reading  of  a  de- 
position ?  Nay  more,  would  every  Court  of  Common  Pleas  or  jus- 
tice of  the  peace  in  the  state  have  the  same  power,  would  a  justice 
of  the  peace  or  Court  of  Common  Pleas  have  a  right  to  question 
the  commission  of  one  of  the  judges  of  the  Supreme  Court,  on  an 
an  allegation  of  a  removal  from  the  state  ?  We  occasionally  visit 
our  friends  in  the  neighboring  states,  and  it  would  be  a  singular 
spectacle  if  our  offices  should  be  vacated  in  our  absence,  on  the  plea 
that  we  had  become  citizens  in  another  state.  If  this  should  be 
law,  offices  are  held  by  a  most  precarious  tenure.  No  court,  pro- 
fessing the  slightest  tincture  of  judicial  science,  have  ever  under- 
taken to  examine  the  right  to  office,  either  on  writ  of  error,  certiornri, 
or  when  the  matter  came  incidentally  before  them.  In  the  Com- 
monwealth v.  Bache,  this  question  came  before  the  Supreme  Court. 
Richard  Bache  was  indicted  for  an  assault  and  battery  on  Alder- 
man Binns.  The  indictment  contained  two  counts,  one  for  an 
assault  and  battery,  the  other  for  an  assault  and  battery  upon 
Alderman  Binns,  while  in  the  execution  of  the  duties  of  his  office. 
It  was  the  opinion  of  the  whole  court,  that  Mr.  Binns'  right  to  the 
office  he  held  could  not  be  questioned  on  the  indictment ;  and  we 
accordingly  suspended  giving  judgment,  and  put  Baehe  to  an  infor- 
mation, in  the  nature  of  a  writ  of  quo  warranto.  This  case  is 
exceedingly  strong,  for  the  Act  of  Assembly  enacts  in  express 


304  SUPREME  COURT  [Lancaster 

[MoKiin  v.  Somers.] 

terms,  that  the  acceptance  of  certain  commissions  named  in  the  act, 
makes  the  commissions  of  alderman,  justices  of  the  peace,  &c.,  null 
and  void.  It  is  strange  that  if  the  law  be  as  stated  by  the  counsel 
for  the  plaintiff'  in  error,  we  have  not  some  trace  of  it  in  some 
adjudged  case  or  elementary  treatise. 

The  pivot  on  which  the  argument  of  the  plaintiff's  counsel 
turned,  was  that  a  false  oath,  taken  before  such  a  justice,  is  not 
punishable  as  perjury.  For  this  I  should  also  have  been  glad  to 
have  had  some  authority.  So  far  from  this  position  being  correct, 
I  find  the  law  differently  stated  in  2  Hawkins  89,  a  book  of  un- 
doubted authority,  and  in  a  case  bearing  great  analogy  to  the 
present.  It  has  been  adjudged,  says  the  commentator,  that  a  false 
oath  taken  before  persons,  who  having  been  commissioned  to  ex- 
amine witnesses,  happen  to  proceed  after  the  demise  of  the  king, 
who  gave  them  their  commissions,  and  before  notice  thereof,  may 
be  punished  as  perjury;  for  it  would  be  of  the  utmost  ill  conse- 
quence to  make  such  proceeding  void  ;  and  therefore,  though  all 
commissions  legally  determine  by  the  demise  of  the  king  who  gave 
them,  without  any  notice,  yet  for  the  necessity  of  the  case,  what- 
ever is  done  before  such  notice,  must  be  suffered  to  stand  good,  for 
otherwise  the  most  innocent  and  most  deserving  subject  would  be 
unavoidably  exposed  to  numberless  prosecutions  for  doing  their 
duties,  without  any  color  or  fault.  I  put  this  case,  would  the 
Court  of  Quarter  Sessions  of  this  county,  suffer  the  constitutionality 
of  the  law  establishing  the  District  Court  to  be  inquired  into,  on  an 
indictment  for  perjury,  committed  in  a  cause  tried  before  the  Dis- 
trict Court  ? 

The  distinction  is  between  oaths  taken  before  persons  merely  act- 
ing in  a  private  capacity,  and  those  who  take  upon  them  to  admin- 
ister oaths  of  a  public  nature  without  legal  authority,  or  color  of 
authority.  Wherever  persons  wJio  have  color  of  authority,  acting 
under  commissions  from  the  appointing  power,  but  which  it  may  be 
alleged  have  been  forfeited  by  some  act  •which  may  perhaps  be  of 
an  equivocal  nature,  in  all  such  cases  the  validity  of  the  commis- 
sions cannot  be  examined  in  a  suit  in  which  they  are  not  a  party. 
The  regular,  ami  indeed  the  only  mode  is  by  information.  If  a  per- 
son usurps  an  authority  to  which  he  has  no  title  nor  color  of  title, 
that  would  present  a  different  case;  for  every  act  of  such  a  person 
would  be  simply  void.  But  the  law  pays  such  respect  to  those  who 
are  clothed  even  with  colorable  title,  as  not  to  permit  the  title  to 
be  examined,  except  in  a  mode  in  which  thev  are  parties,  and  before 
the  proper  tribunal,  the  Supreme  Court,  in  whom  by  Act  of  Assem- 
bly, all  the  authority  of  the  Court  of  the  King's  Bench  is  vested. 

The  plaintiff  in  error  further  objects  to  the  admission  of  the 
following  question  and  answer  in  the  deposition.  Question,  by 
defendant:  "Did  Captain  McKitn  tell  you  that  lie  had  received 
§100  of  me,  in  Wilmington  and  Brandy  wine  money?"  Answer: 


May  1830.]  OF  PENNSYLVANIA.  305 

[McKim  v.  Somera.] 

"Yes."  This  was  opposed  on  the  ground  that  it  was  a  leading 
question.  The  court  overruled  the  objection,  and  of  this  the  plain- 
tiffs in  error  also  complain.  At  common  law,  depositions  were  not 
received  in  evidence,  and  if  received  at  all,  it  was  with  great  cau- 
tion. It  was  thought,  and  justly  too,  that  viva  voce  testimony  was 
much  better  than  depositions.  But  experience  has  taught  us,  as 
commercial  transactions  multiplied,  and  commerce  extended,  that 
the  use  of  depositions  tends  to  expedite  causes,  and  indeed  is  indis- 
pensable in  the  administration  of  justice.  Hence  in  modern  time, 
they  are  guarded,  but  not  put  under  necessary  restraints.  In  Shu- 
ler  v.  Speer,  3  Binn.  130,  it  was  decided  that  a  leading  interrog- 
atory put  to  a  witness  should  be  objected  to  at  the  time  it  was  put ; 
it  cannot  be  objected  to  on  that  ground  alone  at  the  trial.  And  in 
Strickler  v.  Todd,  10  S.  '&  R.  70,  the  same  principle  was  recog- 
nised. It  is  said,  and  perhaps  truly,  that  both  parties  appeared  at 
the  taking  of  the  deposition,  though  this  does  not  appear  in  Strick- 
ler v.  Todd.  And  in  neither  case  is  the  decision  put  upon  that 
ground.  Although  McKim  was  not  actually  present  at  the  time 
the  question  was  asked,  yet  he  might  have  been  present.  Instead 
of  attending  to  the  taking  of  the  deposition,  he  enters  a  protest 
against  taking  it  at  all,  without  stating  his  reasons ;  and  therefore 
(not  because  he  had  no  notice),  it  was  taken  in  his  absence.  When 
a  party  has  an  opportunity  of  being  present,  and  does  not  choose  to 
avail  himself  of  it,  he  shall  not  afterwards  be  permitted  to  make 
formal  objections  against  it.  Depositions  are  frequently  taken  by 
the  parties  themselves,  without  the  aid  of  counsel,  and  are  generally 
very  inartificially  drawn.  If  we  were  to  listen  to  captious  objec- 
tions, it  would  impair  the  utility  of  such  proof,  particularly  in  case 
of  death.  When  a  party  attends,  and  objects  to  the  form  of  the 
question,  then  if  the  opposite  party  persists,  he  does  so  at  his  peril. 
This  is  giving  suitors  every  advantage  which  policy  requires,  and  I 
am  not  for  extending  the  privilege  any  further. 


Judgment  affirmed. 


1  P.  &  W.— 20 


80C  SUPREME  COURT  [Lancaster 


Dietrich  against  Dietrich  et  al. 

A  deposition  taken  in  the  Register's  Court  upon  hearing  of  any  cause 
litigated  in  that  court,  but  not  decided,  is  not  evidence  upon  the  trial  of  an 
is<»ue  between  the  same  parties,  directed  by  that  court  without  proof  that  the 
deponent  is  dead,  out  of  the  jurisdiction  of  the  court,  or  unable  to  attend. 

Qiutre.  Whether  the  decision  of  the  trying  court  upon  the  preliminary 
proof  of  the  inability  of  the  witness  to  attend  is  the  subject  of  error?1 

Qncere.  Upon  an  issue  devisavit  vel  no/i,  are  the  declarations  of  a  devisee, 
who  is  a  party  to  the  issue,  evidence,  where  there  are  other  devisees  or 
legatees  not  parties  ?a 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  the  county  of 
Lancaster. 

This  was  an  issue  of  devisavit  velnon  on  an  instrument  of  writing, 
purporting  to  be  the  last  will  and  testament  of  Philip  Dietrich,  de- 
ceased. 

That  paper  contained  a  devise  of  one  tract  of  land  to  Henry 
Dietrich,  and  another  to  his  sons  Adam  and  Samuel,  charged  with 
legacies  which  were  bequeathed  to  the  testator's  son  Michael,  and 
his  two  daughters,  Barbara,  wife  of  Andrew  Yundt,  and  Christiana, 
wife  of  Jacob  Sheaffer. 

Henry  Dietrich  and  Christian  Herr  were  appointed  executors, 
and  the  paper  was  witnessed  by  Michael  Rudicil,  John  Kurtz  and 
Philip  Gloninger.  It  was  not  received  to  probate,  but  on  the  ca- 
veats of  Michael  Dietrich  and  Andrew  Yundt,  this  issue  was  directed 
on  the  19th  of  October  1816.  The  case  had  been  tried  several 
times  before,  and  is  reported  in  5  S.  &  R.  207. 

On  the  present  trial,  the  following  bills  of  exception  were  taken 
on  the  part  of  the  plaintiffs,  who,  the  verdict  and  judgment  being 
against  him,  brought  this  writ  of  error. 

First  bill  of  exception  :  After  eleven  of  the  jurors  for  the  pur- 
pose of  trying  this  cause  had  been  called,  and  were  in  the  box,  an 
application  was  made  by  the  plaintiff  for  its  continuance  ;  upon 
which  application  Henry  Dietrich,  the  plaintiff,  being  duly  sworn 
according  to  law,  among  other  things,  testified  that  he  had  not 
subpoenaed  Mr.  Gloninger,  but  that  he  went  last  week  to  Mr.  Glo- 
ninger's  house  with  a  subpoena  in  his  pocket  for  Mr.  Gloninger, 
(which  he  now  produces,  prout  the  same).  He  told  Mr.  Gloninger 
he  had  a  subpoena  in  his  pocket  for  him  to  attend  on  Monday  last, 
and  had  come  to  subpoena  him.  Mr.  Gloninger  replied  that  it  was 
not  worth  while  for  him  to  do  so,  he  could  not  attend,  his  deposi- 
tion had  been  taken,  and  they  must  be  satisfied  with  that.  After 
plaintiff  had  given  all  his  testimony  on  the  motion  to  continue,  the 

1  Soe  Denniaon  c.  Fairchild.  7  W.  309. 

7  Thin  query  is  answered  negatively  by  Boyd  r.  Eby,  8  W.  66;  Hauberger 
c.  Root,  6  W.  &  S.  431. 


May  1830.]  OF  PENNSYLVANIA.  -307 

[Dietrich  v.  Dietrich.] 

defendants  called  Adam  Metzgar,  a  witness,  who  testified  that  he 
had  this  morning  signed  his  name  as  a  witness  to  the  will  of  Philip 
Gloninger,  that  Mr.  Gloninger  sent  for  him,  and  that  he  thought 
him  very  well,  better  than  he  had  been.  Whereupon,  the  court 
decided  that  they  would  riot  continue  the  said  cause.  The  cause 
being  at  issue,  the  jury  were  then  sworn  according  to  law,  and  the 
plaintiff  to  maintain  the  issue  on  his  part  offered  in  evidence  the 
deposition  of  Philip  Gloninger,  taken  before  the  Register's  Court 
of  the  county  of  Lancaster,  in  the  cause  in  which  this  issue  is 
directed,  on  the  19th  October  1816. 

The  plaintiff  then  called  Dr.  John  Miller  as  a  witness,  who 
being  duly  sworn  according  to  law,  testified  as  follows:  "Philip 
Gloninger  might  be  able  to  come  to  court,  but  I  don't  believe  he 
would  be  able  to  go  through  all  the  testimony  in  his  present  situa- 
tion. He  has  got  an  asthmatical  affection  of  his  breast,  on  account 
of  which  he  cannot  rest  at  night,  arid  has  not  rested  any  for  several 
weeks.  He  has  also  had  a  slight  bilious  affection  last  week  ;  that, 
together  with  his  former  complaint  has  weakened  his  mind  consid- 
erably, from  which  he  has  become  a  little  nervous,  and  would  be  un- 
able to  attend  an  examination.  An  examination  might  excite  his 
vascular  system,  and  it  might  bring  on  either  slight  apoplexy  or  a 
state  of  syncope,  as  I  have  seen  him  once  or  twice."  Question, 
" Would  or  would  not  an  examination  be  dangerous  to  his  life?" 
"In  this  way  it  might  be  considered  so.  I  saw  him  last  between 
nine  and  ten  o'clock  this  morning.  I  saw  him  before  that  yester- 
day in  the  forenoon.  I  consider  him  rather  better  to-day.  I  have 
had  no  conversation  with  him  respecting  wills — but  he  seemed  very 
anxious,  and  told  me  he  wished  to  be  better,  he  had  about  half  a 
dozen  lines  to  write  respecting  his  own  family,  and  he  would  be  sat- 
isfied. He  told  me  he  was  -seventy-four  years  of  age."  Question, 
" How  long  has  he  been  in  his  present  situation?"  ''The  chief 
par.t  of  this  summer  affected  with  the  asthmatical  affection."  Ques- 
tion, "  Would  not  the  gentlemen  have  been  enabled  to  take  his  de- 
position at  any  time  during  the  present  summer  ?"  "  I  don't  doubt 
but  they  might."  Question,  "Might  it  not  have  been  taken  a  month 
ago?"  "  I  have  not  paid  such  attention  as  to  the  time,  to  say  how 
he  was  a  month  ago  ;  I  expect  it  might  have  been  taken  with  safety 
six  weeks  ago.  ]  know  nothing  of  his  making  his  will  this  morn- 
ing, except  what  I  heard  in  court ;  I  have  never  known  of  a  per- 
son having  syncope  from  asthma  in  court ;  no,  nor  read  of  one. 
His  vascular  system  is  very  much  excited  at  present ;  and  there  is 
a  probability  of  its  happening  from  the  predisposition  of  the  system. 
His  pulse  is  always  full  and  strong;  I  believe  it  is  very  rare  that 
apoplexy  has  been  occasioned  by  asthma.  His  strong  pulse  is 
occasioned  by  a  spasmodic  affection  of  the  lungs.  He  commonly 
passes  the  day  tolerably  easy,  but  at  night  rests  none,  except  sitting 
up,  and  never  rests  an  hour  at  a  time.  It  is  possible  he  might 


308  SUPREME  COURT  [Lancaster 

[Dietrich  v.  Dietrich.] 

answer  half  a  dozen  questions  here,  and  possibly  not.  No  one  can 
tell  what  effect  it  might  have.  The  heated  atmosphere  here  would 
be  very  exhausting  to  him  ;  to  stand  such  an  examination  and 
cross-examination  for  two  hours  would  raise  his  pulse.  He  is  a 
choleric  man  ;  and  I  would  suppose  it  would  have  the  effect  of 
operating  on  his  brain." 

The  plaintiff  offered  his  deposition  in  the  Register's  Court,  and 
the  minutes  of  the  Register's  Court. 

The  defendants  then  called  John  Getz  as  a  witness,  who  being 
duly  sworn  according  to  law,  testified  as  follows:  "It  was  between 
9  and  10  o'clock  this  morning  I  saw  Philip  Gloninger,  and  I  think 
his  state  of  mind  was  as  good  as  ever,  only  that  he  was  very  weak. 
In  his  writing-room  or  office  I  saw  him ;  he  was  sitting  on  the 
chair.  I  saw  him  looking  over  his  will,  and  he  altered  some  of  the 
writing;  rectified  it.  I  and  Mr.  Diffenbaugh  and  Mr.  Adam 
Metzgar  were  the  witnesses  to  his  will.  He  executed  the  will 
before  us.  lie  would  be  able  at  home,  I  suppose,  to  give  testimony  ; 
since  this  morning  I  have  not  seen  him — he  would  have  been  this 
morning." 

Question,  "  What  is  the  nature  of  his  complaint?"  "  Dr.  Miller 
can  tell.  I  have  seen  him  so  that  he  could  not  rest  five  minutes 
on  account  of  his  breath  ;  and  he  said  he  got  giddy  in  his  head,  and 
he  said  he  was  so  very  weak.  If  he  would  be  as  he  was  a  couple 
of  days  ago,  he  could  not  have  been  examined  and  cross-examined 
for  two  hours.  This  morning  between  9  and  10  o'clock  may  be 
he  could  have  stood  it  a  quarter  of  an  hour  or  so,  but  how  much 
longer  I  could  not  say."  Question,  "  What  would  be  the  effect  of 
bringing  him  here  and  examining  him  two  hours?"  "  I  can't  say." 
Question,  "  Could  he  stand  at  all  ?"  "  I  hardly  think  he  could  ;  I 
have  seen  him  some  days  when  he  could  not."  Question,  "Don't 
you  think  it  would  be  a  great  danger  to  his  health?"  "It  might 
be  a  danger  to  his  health."  Question,  "  How  long  was  he  occupied 
in  looking  over  his  will  ?"  "Not  long — asked  me  to  call  Mr.  Dif- 
fenbaugh— it  might  be  between  ten  and  fifteen  ininutes ;  he  looked 
over  it,  and  took  his  knife  and  scratched  a  little,  and  then  said  it 
was  right.  I  don't  take  it  that  he  is  getting  better;  he  says  he  is 
not ;  said  he  could  not  rest  at  night,  nor  had  not  for  some  nights. 
I  have  not  seen  him  out  of  his  house  for  near  three  weeks ;  he  did 
not  speak  so  much  ;  he  was  sitting,  and  fell  asleep,  and  did  not  hear 
some  words  I  think  ;  he  has  been  in  the  habit  of  falling  asleep  for 
some  years;  that  is  when  he  sat  long;  he  has  a  spring  machine  to 
put  behind  him  in  bed,  borrowed  of  Mrs.  Yeates  ;  I  mended  it." 

[Porter  read  the  record  of  this  suit,  by  which  it  appears  that  on 
the  former  trials  Mr.  Gloninger  was  the  first  witness  examined  by 
the  plaintiff.] 

The  counsel  of  the  defendants  then  objected  to  the  admission  of 
the  said  deposition  of  Philip  Gloninger,  taken  before  the  said  Regis- 


May  1830.]  OF  PENNSYLVANIA.  309 

[Dietrich  v.  Dietrich.] 

ter's  Court,  in  evidence  ;  and  after  argument,  the  court  sustained 
their  objection,  and  overruled  the  same,  to  which  opinion  of  the 
court  the  counsel  for  the  plaintiff  did  except,  and  pray  the  court  to 
seal  this  their  bill  of  exceptions,  which  is  done  accordingly. 

Second  bill  of  exceptions.  The  counsel  for  the  plaintiff,  after  the 
foregoing  bill  of  exceptions  was  sealed,  offered  to  prove  as  follows" 

"  The  plaintiff,  to  maintain  the  issue  on  his  part,  offered  in  evi- 
dence the  caveat  of  Michael  Dietrich  and  Adam  Yundt  against  the 
probate  of  the  instrument  of  writing  now  on  trial ;  the  proceedings 
of  the  Register's  Court  thereupon,  previous  to  the  direction  of  the 
issue  [and  to  prove  that  Philip  Gloninger,  the  person  who  drew  the 
said  instrument  of  writing,  and  who  is  a  subscribing  witness  thereto, 
although  regularly  subpoenaed,  cannot  attend  on  account  of  bodily 
and  mental  infirmity ;  that  both  his  body  and  mind  are  so  diseased 
and  impaired  that  he  cannot  now  be  examined  as  a  witness  either 
at  his  own  house  or  in  court,  nor  could  he  have  been  for  the  last 
three  weeks],  and  we  offer  in  evidence  the  deposition  of  Philip 
Gloninger,  taken  before  the  Register's  Court  on  the  19th  October, 
prout  the  same." 

To  this  testimony  the  counsel  for  the  defendants  made  the  fol- 
lowing objection  in  writing:  "The  counsel  for  the  defendants 
objected  to  so  much  of  the  said  offer  as  would  permit  the  giving  in 
evidence  of  the  depositions,  or  any  of  them,  taken  in  the  Register's 
Court." 

The  counsel  for  the  plaintiff  then  read  in  evidence  the  caveat  of. 
Michael  Dietrich,  dated  16th  September  1816,  and  the  caveat  of 
Andrew  Yundt,  dated  17th  September  1816,  and  the  record  in  the 
Register's  Court  in  the  cause  in  which  this  issue  is  directed,  dated 
19th  October  1816. 

The  counsel  for  the  defendant  then  stated  that  they  did  not 
object  to  so  much  of  the  said  offer  as  is  included  in  brackets ;  but 
that  they  did  object  to  the  remaining  part  of  the  offer,  to  wit,  the 
part  of  it  which  follows  the  brackets. 

The  part  within*  brackets  not  objected  to,  and  therefore  allowed 
by  the  court,  but  at  the  same  time  the  court  overruled  the  said 
deposition  of  Philip  Gloninger,  taken  before  the  Register's  Court, 
on  the  19th  October  1816.  To  which  opinion  of  the  court  over- 
ruling the  said  deposition,  the  counsel  for  the  plaintiff  did  except, 
and  pray  the  court  to  seal  this  bill  of  exceptions,  which  is  done 
accordingly. 

Third  bill  of  exceptions.  The  cause  being  at  issue  and  the  jury 
sworn,  prout  the  record,  the  plaintiff  to  maintain  the  issue  on  his 
part,  gave  in  evidence,  amongst  other  things,  the  instrument  of  writ- 
ing purporting  to  be  the  last  will  and  testament  of  Philip  Dietrich, 
deceased,  the  validity  of -which  is  on  trial  in  the  present  cause, 
bearing  date  the  13th  day  of  April  1816. 


310  SUPREME  COURT  \Lanca*ter 

[Dietrich  r.  Dietrich.] 

After  the  plaintiffs  had  rested  the  defendants,  among  other  things 
having  read  the  deposition  of  Elizabeth  Lechler,  to  maintain  the 
issue  on  their  part,  offered  in  evidence  the  deposition  of  Lydia  Cur- 
ran,  taken  before  Samuel  Carpenter,  Esq.,  the  13th  day  of  March 
1820,  and  filed  of  record  in  this  cause. 

The  plaintiff  objected  to  that  part  of  said  deposition,  a  copy  of 
which  follows  : 

"  I  also  lived  at  Henry  Dietrich's  a  little  better  than  two  months  ; 
when  he  would  come  home,  his  wife  would  ask  him  '  How  is  the  old 
man  ?'  He  would  say  'He  is  childish  and  childisher  every  day.' ' 

The  court  overruled  the  said  objection  of  the  plaintiff's  counsel, 
and  admitted  the  said  part  of  the  deposition  to  be  read,  to  which 
opinion  of  the  court  the  counsel  for  the  plaintiff  did  except,  and 
pray  the  court  to  seal  this  their  bill  of  exceptions,  which  is  done 
accordingly. 

Fourth  bill  of  exceptions.  The  cause  being  at  issue,  and  the  jury 
sworn,  prout  the  record,  the  plaintiff  after  having  given  in  evidence, 
among  other  things,  the  instrument  of  writing  purporting  to  be  the 
last  will  and  testament  of  Philip  Dietrich,  deceased,  dated  30th 
April  1816,  rested.  The  defendants,  to  maintain  the  issue  on  their 
part,  offered  in  evidence  the  deposition  of  James  Lowe.  The  plain- 
tiff objected  to  that  part  of  the  said  deposition  which  follows,  to 
wit :  This  deponent  further  heard  Henry  Dietrich,  the  plaintiff  in 
this  suit,  say  to  this  deponent  that  the  said  Philip  Dietrich  was 
childish  and  doted  ;  this  was  about  two  years  ago,  as  near  as  this  de- 
ponent can  recollect,  he  knows  that  it  was  about  that  time,  as  it  was 
just  before  the  election  in  the  fall  of  the  year  1815 ;  that  this  de- 
ponent moved  away  from  where  he  lived  near  the  said  Philip 
Dietrich,  and  what  he  has  above  deposed  to  happened  during  the 
said  year. 

The  court  overruled  the  said  objection  of  the  plaintiff,  and  per- 
mitted that  part  of  the  said  deposition  to  be  read,  to  which  opinion 
of  the  court  the  counsel  for  the  plaintiff  did  except  and  pray  the 
court  to  seal  this  bill  of  exceptions,  which  is  done  accordingly. 

Fifth  bill  of  exceptions.  The  cause  being  at  issue,  and  the  jury 
sworn,  prout  the  record,  the  plaintiff  having  examined  John  Kortz, 


gave 

defendants  then  gave  their  testimony  in  chief  to  the  jury;  and, 
among  other  things,  examined  several  witnesses,  who  testified  to  the 
general  good  character  of  Elizabeth  Dietrich,  the  wife  of  Michael 
Dietrich,  one  of  the  defendants.  The  plaintiff  then  proceeded  to 
give  his  repelling  testimony  in  evidence,  and,  among  other  things, 
proved  by  John  Landi.s  that  Elizabeth  Russell,  a  witness  who  had 
been  examined  in  behalf  of  the  defendants,  in  the  year  1817,  or 


May  1830.]  OF  PENNSYLVANIA.  311 

[Dietrich  v.  Dietrich.] 

1818,  at  his  house,  said  that  Michael  Dietrich,  Jr.,  the  son  of  one 
of  the  defendants  was  at  her ;  they  wanted  her  to  give  such  evi- 
dence as  they  wanted  ;  that  they  promised  her  some  furniture  if 
she  would  do  so,  but  she  said  she  was  not  going  to  do  it.  She  said 
the  old  man  had  his  senses  to  the  last  hour ;  she  said  she  would  not 
take  a  false  oath  for  Michael  Dietrich,  or  any  body  else.  The 
plaintiff  also  proved  by  Elizabeth  Dietrich,  that  the  said  Elizabeth 
Russell,  had  told  her  that  the  said  Michael  Dietrich,  Jr.  (who  had 
also  been  examined  as  a  witness  in  behalf  of  the  defendants),  had 
been  at  their  house,  and  had  wanted  her  to  swear  on  their  side,  and 
had  promised  her  a  table  and  half  a  dozen  chairs,  and  a  half  a 
dozen  cups  and  saucers  and  plates,  to  do  so.  The  plaintiff  then 
afterwards  examined  Margaret  Flick  as  a  witness,  who  testified  as 
follows:  "Mrs.  Dietrich  (the  wife  of  Michael  Dietrich,  the  defend- 
ant), told  me  to  tell  Betsey  Russell  to  come  in ;  she  had  a  house- 
tire  for  her.  It  was  some  time  after  the  old  man's  death.  Betsey 
Russell  came  in  one  Sunday  afternoon.  Mrs.  Dietrich  sent  word 
down  by  Rebecca  Dietrich,  her  daughter,  for  me  and  Betsey  Rus- 
sell to  come  up.  I  told  her  I  did  not  like  to  go  up,  and  she  went 
home.  She  came  back  directly  again,  and  told  us  we  must  come 
up.  I  told  her  then  again,  I  did  not  like  to  go  up.  She  told  me 
then,  we  should  come  up — we  could  go  in  the  back  way — that  she 
had  a  key  to  the  garden  gate.  Then  Rebecca  did  not  go  till  we 
went  along.  Mrs.  Dietrich  asked  me  what  was  the  reason  why  we 
did  not  come  ?  I  don't  recollect  what  I  said.  She  told  Betsey 
Russell  then,  she  had  some  cups  and  saucers  for  her ;  half  a  dozen 
of  china,  and  half  a  dozen  of  plates,  two  butter  plates  and  cream 
jug.  She  told  rne  then  we  should  take  them  along ;  I  told  her 
then  I  did  not  like  to  take  them  along  because  it  was  Sunday. 
Then  I  told  her  I  would  go  out  to  Adam's  on  Monday  morning: 
I  was  working  there  then,  and  would  take  them  along  to  Betsey 
Russell.  On  Monday  morning  I  went  up  to  Michael  Dietrich's 
with  a  basket,  to  take  the  cups  and  saucers  and  plates  to  Betsey 
Russell.  Mrs.  Dietrich  put  them  in  the  basket  for  me,  and  told  me 
to  tell  Betsey  Russell,  that  if  Adam  Dietrich's  family  did  not  use 
her  well,  she  should  come  in  and  live  with  them,  that  she  would 
give  her  house  room,  and  charge  her  no  house-rent.  When  I  came 
out  to  the  house,  I  told  Betsey  Russell  this.  She  told  me  then, 
that  she  knew  very  well  what  they  wanted.  She  told  me  then  she 
would  not  go  there  at  all ;  they  were  going  to  take  her  in  to  go  on 
their  side." 

The  plaintiff  then,  further,  to  maintain  the  issue  on  his  part, 
offered  to  prove  by  the  said  Margaret  Flick,  that  the  said  Elizabeth 
Dietrich,  the  wife  of  Michael  Dietrich,  attempted  to  bribe  her.  the 
said  witness,  to  swear  that  old  Philip  Dietrich  was  out  of  his  senses. 
The  counsel  for  the  defendant  objected  to  the  admission  of  the  said 


312  SUPREME  COURT  {Lancaster 

[Dietrich  r.  Dietrich.] 

testimony  :  and  the  court,  after  argument,  sustained  their  objection 
and  overruled  the  same ;  to  which  opinion  of  the  court,  the  counsel 
for  the  plaintiff  did  then  and  there  except,  and  pray  the  court  tc 
seal  this  bill  of  exceptions,  which  is  done  accordingly. 
The  plaintiffs  in  error  assigned  the  following  errors : — 
1.  There  is  error  in  the  first  and  second  bills  of  exception  ;  in- 
asmuch  as  the  court  ought   to   have  permitted  the  deposition  of 
Philip  Gloninger,  taken  before  the  Register's  Court,  to  be  read  in 
evidence  to  the  jury. 

'2.  There  is  error  in  the  third  bill  of  exceptions,  inasmuch  as 
the  court  permitted  that  part  of  the  deposition  of  Lydia  Curran, 
which  was  objected  to  by  the  counsel  of  the  plaintiff,  to  be  read  in 
evidence. 

3.  The  court  erred  in  permitting  that  part  of  the  deposition  of 
James  Lowe,  to  be  read  in  evidence,  which  was  objected  to  by  the 
counsel  for  the  plaintiff,  and  which  is  the  subject  of  the  fourth  bill 
of  exceptions. 

4.  The  court  erred  in  refusing  to  permit  Margaret  Flick,  under 
the  circumstances  stated  in  the  fifth   bill  of  exceptions,  to  testify, 
that  Elizabeth  Dietrich,  the  wife  of  Michael  Dietrich,  attempted  to 
bribe  her  to  swear  that  old  Philip  Dietrich  was  out  of  his  senses ; 
and  therefore,  there  is  error  in  the  fifth  bill  of  exceptions. 

Buchanan,  for  the  plaintiff  in  error. — First  error.  The  deposi- 
tions of  the  subscribing  witnesses  to  the  will  were  reduced  to 
writing  by  the  Register's  Court,  under  the  Act  of  Assembly  of  the 
13th  April  1701,  Purd.  Dig.  703,  the  18th  sect,  of  which  requires 
that  the  depositions  of  the  several  witnesses  examined  before  that 
court  shall  be  taken  in  writing,  and  made  part  of  the  proceedings 
in  the  cause,  and  makes  these  depositions  evidence  upon  an  appeal. 

They  are  part  of  the  record,  and  taken  with  more  care  than 
could  be  had  under  any  other  circumstances,  and  in  the  present 
case  they  were  taken  upon  a  full  cross-examination.  Philip  Glo- 
ninger, the  witness,  whose  deposition  the  plaintiffs  offered,  was  a 
man  of  seventy-four  years  of  age,  in  extremis,  and  his  inability  to 
attend,  established  by  the  testimony  of  his  attending  physician,  and 
yet  the  court  rejected  his  deposition.  It  could  not  be  on  the  ground 
that  there  had  been  a  failure  to  prove  the  inability  of  the  witness 
to  attend  that  the  deposition  was  overruled.  To  that  point  the 
proof  was  full.  Nor  can  it  be  the  law,  that  the  judge  who  tries 
the  cause,  has  upon  this  preliminary  question  the  right  to  decide 
conclusively,  and  without  review.  The  syllabus  which  states  this 
principle  is  not  supported  by  the  case :  Voris  v.  Smith,  13  S.  &  R. 
334.  It  must  be  a  clear  case,  we  admit,  which  would  justify  this 
court  to  reverse  on  this  ground.  He  referred  also  to  Vincent  v. 
Huff,  8  S.  &  R.  381,  387. 

But  it  is  apparent  on  the  second  bill  of  exceptions,  that  the 


May  1830.]  OF  PENNSYLVANIA.  313 

[Dietrich  v.  Dietrich.] 

deposition  was  not  rejected  for  any  defect  of  proof  on  this  point. 
Upon  that  bill  we  offered  to  prove  the  absolute  inability  of  the  wit- 
ness to  attend. 

When  an  issue  is  directed  by  a  court  of  chancery  to  a  court  of 
law,  to  which  this  is  analogous,  it  was  never  heard  that  a  deposi- 
tion which  had  been  taken  in  the  cause  in  chancery,  and  passed 
publication,  could  not  be  read.  This  deposition  is  taken  in  the 
most  solemn  form,  and  by  the  Act  of  Assembly  is  made  part  of  the 
record:  Logan  v.  Watt,  5  S.  &  R.  212;  Dornick  v.  Reichenback, 
10  Id.  84.  lie  referred  also  to  the  case  of  Sholly  v.  Diller,  2  Rawle 
177. 

Second  and  third  errors.  The  question  presented  on  these  bills 
is  whether  the  declarations  of  Henry  Dietrich,  one  of  the  devisees, 
who  was  a  party  to  the  issue,  can  be  received  in  evidence  to  affect 
the  interests  of  the  other  devisees.  He  contended  they  could  not. 
It  was  so  decided  by  the  Supreme  Court  of  the  state  of  Massachu- 
setts, in  the  case  of  Phelps  v.  Hartwell,  1  Mass.  71 ;  and  the  same 
principle  is  recognised  in  the  case  of  Bovard  v.  Wallace,  4  S.  &  R. 
499,  and  the  very  point  is  decided  in  Nussear  v.  Arnold,  13  Id. 
323.  Nussear  was  a  nominal  party,  being  the  agent  of  the  party 
in  interest,  and  the  declarations  offered  were  those  of  the  real  party 
whose  agent  he  was.  The  court  placed  the  decision  of  that  case  on 
the  true  ground,  that  the  declarations  of  one  devisee  shall  not  be 
received  to  destroy  the  interest  of  others :  Walmsley  v.  Read,  1 
Yeates  87.  The  furthest  courts  have  gone  upon  this  subject  is  to 
admit  the  declarations  of  a  trustee,  party  on  record,  to  effect  the 
cestui  que  trust :  2  Starkie's  Ev.  39,  40,  41.  But  the  declarations 
of  an  executor  before  he  became  such  are  not  evidence :  4  Conn. 
544.  These  declarations  of  Henry  Dietrich  were  made  in  the  life- 
time of  the  testator. 

Fourth  error.  The  wife  of  the  defendant  was  active  in  corrupt- 
ing the  witness  of  the  plaintiff;  she  united  with  him  in  a  conspiracy 
to  effect  this  object,  and  proof  should  have  been  received  of  her 
attempt  to  bribe  the  witness. 

Porter,  for  defendant  in  error. — There  is  no  question  but  that 
evidence  may  be  given  of  what  a  witness  swore  on  a  former  trial 
between  the  same  parties,  if  he  be  dead  or  reside  out  of  the  state  : 
Magill  v.  Kauffman,  4  S.  &  R.  319;  Lightner  v.  Wike,  Id.  203; 
Carpenter  v.  Groff,  5  Id.  162  ;  Chess  v.  Chess,  17  Id.  409.  Admit, 
for  the  sake  of  argument,  that  a  deposition  taken  before  the 
Register's  Court  is  upon  the  same  footing,  still  the  plaintiff  did 
not  bring  himself  within  the  rule :  Ottinger  v.  Ottinger,  17  S.  & 
R.  142. 

This  rule  has  not  been  extended  to  a  witness  residing  within  the 
jurisdiction  of  the  court,  however  infirm  he  may  be  :  Richardson  v. 
Steward,  2  S.  &  R.  84.  So  no  person  can  be  admitted  to  prove  a 


314  SUPREME  COURT  {Lancaster 

[Dietrich  v.  Dietrich.] 

deed,  until  it  appear  that  the  subscribing  witnesses  are  dead  or  not 
to  be  had :  Peters  r.  Condron,  2  S.  &  R.  80.  Here  the  issue  had 
been  pending  for  eight  years,  during  which  the  party  might  have 
taken  the  deposition  of  the  witness,  and  he  should  have  taken  it. 

The  court  below  decided  that  the  evidence  of  the  inability  of  the 
witness  to  attend  was  insufficient,  and  this  was  the  ground  on  which 
the  deposition  was  rejected.  Their  preliminary  inquiry,  he  con- 
tended, was  exclusively  for  the  trying  court,  and  was  not  the  sub- 
ject of  error:  Vincent  v.  Huff,  8  S.  &  R.  311-7 ;  Voris  v.  Smith, 
13  Id.  334 ;  Harwood  v.  Ramsey,  15  Id.  32 ;  Pipher  v.  Lodge,  16 
Id.  214. 

The  court  below  have  the  witnesses  who  prove  the  preliminary 
matters  before  them,  and  can  best  judge  of  the  degree  of  credit  to 
be  attached  to  their  testimony.  So  where  a  trying  court  have  had 
some  evidence  of  a  paper  having  been  lost,  the  admission  of  second- 
ary evidence  of  its  contents  will  not  be  error,  nor  will  a  court  of 
error  inquire  into  the  preliminary  evidence :  Leazure  v.  Hillegas,  7 
S.  &  R.  323. 

Second  and  third  errors.  Henry  Dietrich  was  the  party  in  the 
cause,  and  this  circumstance  distinguishes  this  case  from  all  the 
cases  relied  on  on  the  other  side.  In  Lightner  v.  Wike,  4  S.  & 
R.  203,  and  Bovard  r.  Wallace,  Id.  499,  the  declarations  were 
decided  not  to  be  evidence,  because  not  made  by  the  party  to  the 
suit. 

The  same  remark  applies  to  the  case  of  Nussear  v.  Arnold,  13 
S.  &  R.  323.  It  was  expressly  put  upon  this  ground  by  the  counsel 
who  argued  the  case,  and  any  general  remark  made  by  Chief  Justice 
Tilghman,  in  delivering  the  opinion  of  the  court,  applicable  to  the 
case  of  the  declaration  of  a  party  to  the  suit,  who  is  devisee  under 
the  will,  is  a  mere  obiter  dictum.  So  an  admission  contained  in 
the  recital  of  a  deed  by  one  of  the  lessors  of  the  plaintiff  is  evidence 
against  all,  as  he  could  not  be  called  as  a  witness,  and  there  is  a 
community  of  interests  among  them :  Brandt  v.  Kleine,  17  Johns. 
R.  33;">.  "So  a  declaration  or  confession  of  one  of  the  lessors  of  the 
plaintiff  in  ejectment  is  evidence  against  all  of  them :  Jackson  v. 
McVey,  18  Johns.  R.  330. 

If  the  declarations  of  the  party  on  record  are  not  evidence,  then 
no  evidence  can  in  any  shape  be  obtained  as  to  his  knowledge,,  for 
he  cannot  be  called  as  a  witness.  But  the  confessions  and  admis- 
sions of  a  party  on  the  record  are  always  evidence,  and  that,  too, 
although  he  be  but  a  trustee :  2  Starkie  Ev.  39 ;  or  whether  they 
are  made  by  a  real  or  nominal  partv,  who  sues  for  the  benefit  of 
another:  1  Phil.  Ev.  [74];  Banerman  r.  Radenus,  7  T.  R.  663; 
Johnson  v.  Kerr,  1  S.  &  R.  25 ;  Marshall  v.  Sheridan,  10  Id.  268. 
So  in  a  civil  suit  against  several,  who  have  a  joint  interest  in  the 
decision,  a  declaration  by  one,  concerning  a  material  fact  within  his 
knowledge,  is  evidence  against  him  and  all  who  are  parties  with 


May  1830.]  OF  PENNSYLVANIA.  315 

[Dietrich  ».  Dietrich.] 

him  to  the  suit :  1  Phil.  Ev.  [75]  ;  Johnson  v.  Beardslee,  15  Johns. 
R.  3. 

Declarations  of  a  joint  debtor,  although  not  a  party  to  the  suit, 
may  be  given  in  evidence:  3  Day  309.  But  here  we  not  only 
alleged  incapacity  of  the  testator,  but  a  conspiracy,  practices  and 
fraudulent  misrepresentations  on  the  part  of  the  principal  devisees, 
and  the  evidence  to  support  these  allegations  had  been  given  before 
the  offer  of  the  declarations  of  the  plaintiff.  On  this  ground  these 
declarations  were  clearly  evidence. 

Fourth  error.  The  evidence  offered  in  this  bill  was  rather  infer- 
ence from  facts  than  the  evidence  of  facts:  Miller  v.  Miller,  3  S. 
&  R.  267.  The  declarations  of  the  wife  are  never  evidencft  against 
her  husband,  even  where  she  is  the  meritorious  cause  of  action  :  1 
Phil.  Ev.  64 ;  Whart.  308,  pi.  439  ;  Randal's  Peake,  17 ;  2  Stark. 
Ev.  707,  note  2 ;  Cro.  Eliz.  245  ;  1  Esp.  N.  P.  413. 

Jenkins,  on  the  same  side. — The  cases  referred  to  of  Ferron  v. 
Read,  Logan  v.  Watt,  Dorrick  v.  Reichenback  and  Sholly  v.  Diller, 
are  all  cases  where  the  writing  was  either  proved  before  the  Regis- 
ter, Register's  Court,  or  upon  an  issue  directed  for  that  purpose. 
In  any  such  case,  the  probate  is  unquestionably  prima  facie  evi- 
dence to  go  to  the  jury,  but  here  the  proceeding  was  arrested  in 
limine,  and  a  decree  of  probate  never  was  made  ;  and  the  depositions 
by  the  Act  of  Assembly  only  become  evidence  in  the  event  of  a 
decree.  By  that  act  either  party  may  ask  an  issue  :  and  if  that  be 
directed,  it  must  be  conducted  according  to  the  principles  of  the 
common  law.  And  they  might  as  well  have  offered  the  paper 
alleged  to  be  a  will  in  evidence  as  to  offer  this  deposition  without 
the  preliminary  proof.  This  issue  is  not  according  to  the  Act  of 
Assembly  which  makes  the  depositions  evidence  on  appeal,  but  it  is 
under  the  proviso  or  exception  to  the  act  which  authorizes  an  issue, 
arid  sends  the  cause  to  a  different  forum. 

It  is  important  to  adhere  to  the  general  common-law  rule  which 
requires  the  personal  presence  and  examination  of  the  witness  before 
the  court :  Gilbert  Ev.  54  ;  and  the  party  who  wishes  to  avail  him- 
self of  an  exception  to  that  rule  should  be  required  to  bring  himself 
clearly  within  the  exception.  If  the  court  will  review  the  evidence 
on  the  preliminary  question  as  to  the  ability  of  the  witness  to  attend, 
it  must  be  in  a  rank  case.  This  is  a  wholesome  principle  and  leads 
to  justice ;  and  this  is  not  such  a  case.  By  reference  to  the  evi- 
dence the  court  will  see  that  the  plaintiff  did  not  make  out  the 
inability  of  the  witness  to  attend. 

Where  counsel  take  the  opinion  of  the  court  on  a  question  of 
blended  law  and  fact,  error  in  that  opinion  is  not  assignable  here : 
Rouvert  v.  Patton,  12  S.  &  R.  253.  Upon  this  principle,  if  the 
court  below  did  err  on  this  point,  this  court  will  not  reverse  on  that 
account. 


316  SUPREME  COURT  {Lancaster 

[Dietrich  v.  Dietrich.] 

Depositions  are  the  creatures  of  the  civil  law,  and  the  proceed- 
ing upon  appeal,  under  this  Act  of  Assembly,  is  in  the  nature  of  a 
civil  law  proceeding.  At  common  law  they  are  but  substitutes  for 
what  is  considered  better  evidence,  and  not  to  be  introduced  but 
upon  evidence  clearly  establishing  the  exception  which  warrants 
their  admission. 

We  proved  that  the  decedent  was  an  infirm,  imbecile  old  man, 
and  that  he  had  been  practised  upon  by  the  plaintiff,  his  son,  for  his 
own  aggrandizement,  and  to  the  ruin  of  his  brothers  and  sisters. 
He  is  not  only  a  party  on  the  record,  and  a  principal  devisee,  but  a 
devisee  deeply  implicated  in  a  fraud  in  obtaining  the  will.  If  the 
principle  be  established  excluding  the  declarations  and  acts  of  a 
devisee  under  these  circumstances  the  grossest  fraud  may  be  pro- 
tected from  examination  ;  legacies  may  be  inserted  in  the  will,  and 
the  devisee,  who  contrived  and  executed  the  fraud,  become  a  party 
to  the  issue ;  and  all  his  acts  and  declarations  which  go  to  demon- 
strate that  fraud  are  shut  out,  and  no  evidence  can  be  given  of 
them. 

The  rule  admitting  the  declarations  of  the  party  does  not  apply 
to  the  case  of  a  mere  trustee  ;  but  where  the  party  has  an  interest, 
his  declarations  are  always  evidence.  This  principle  pervades  all 
the  cases,  and  the  excepted  cases  are  of  parties  having  no  shadow 
of  interest  as  guardians,  executors  or  mere  trustees. 

Hopkins  in  reply. — The  questions  presented  are  of  peculiar 
importance.  Wills  are  commonly  made  by  old  men,  and  their  asso- 
ciates, who  are  usually  old  men,  are  the  witnesses,  and  if  their  testi- 
mony is  not  perpetuated,  disastrous  consequences  result.  The  Act 
of  Assembly  has  therefore  wisely  provided  to  perpetuate  that  testi- 
mony. There  are  two  modes  of  proving  a  will,  in  common  form, 
and  in  solemn  form.  In  common  form  it  is  proved  by  the  oaths  of 
the  subscribing  witnesses,  which  is  the  most  ordinary  mode  in  Penn- 
sylvania. This  proof  is  ex  parte  and  informal,  yet  to  perpetuate 
acts  so  important,  the  depositions  taken  in  this  way  are  permitted 
to  be  read.  This  is  the  principle  in  the  cases  already  referred  to  in 
1  Yeates  87  ;  5  S.  &  R.  212 ;  10  Id.  94,  and  in  4  Yeates  13,  and 
in  the  case  of  Sholly  v.  Diller.  The  officer  usually  has  no  practice 
in  taking  depositions,  and  commonly  generalizes,  and  throws  into 
the  lump  the  testimony  of  the  witnesses  ;  and  yet  these  depositions, 
thus  informally  taken,  contrary  to  all  common-law  rules  in  reference 
to  testimony,  are  made  evidence.  But  the  Register's  Court  is  held 
by  men  fully  competent  to  the  investigation,  and  proceeds  not  ex 
parte,  but  in  the  presence  of  the  parties  litigant.  Under  the  Act 
of  Assembly  all  the  proceedings  of  this  court,  and  before  the  regis- 
ter, up  to  the  time  of  granting  the  issue,  including  the  depositions 
taken,  are  a  matter  of  record,  and  may  be  read  although  the  wit- 
nesses are  actually  present  in  court.  This  court  is  solemnly  consti- 


May  1830.]  OF  PENNSYLVANIA.  317 

[Dietrich  v.  Dietrich.] 

tuted,  and  this  proof  is  formally  taken,  and  in  solemn  form,  and 
much  higher  testimony  than  the  ex  parte  probate  which  has  been 
decided  to  be  competent  evidence.  No  evidence,  therefore,  was 
necessary  to  introduce  the  depositions.  By  the  Act  of  Assembly 
they  are  made  part  of  the  proceedings,  and  in  one  event  they  are 
the  only  evidence  upon  which  the  highest  court,  in  the  last  resort, 
are  to  decide.  The  legislature  meant  that  the  testimony  should  be 
taken  and  fixed  ;  and  whether  in  common  form,  or  in  solemn  form, 
it  is  evidence.  Many  a  will  has  fallen  to  destruction  for  want  of 
this  care  to  preserve  the  testimony.  These  depositions  are  not  only 
taken  in  solemn  form,  but  when  the  recollection  of  the  witnesses  is 
fresh,  and  alive  to  the  transaction,  which  has  then  but  recently  oc- 
curred. In  the  lapse  of  time  the  mind  of  the  witness  is  agitated 
by  the  events  of  life,  and  his  memory  of  the  incidents  connected 
with  the  execution  of  the  will  almost  effaced.  If  the  party  were 
required  again  to  take  his  deposition,  before  a  justice,  an  old  man 
would  be  liable  to  have  his  recollection  played  with,  by  the  inge- 
nuity of  counsel,  and  his  testimony  perverted.  Depositions  usually 
partake  of  the  infirmity  of  the  forum  before  which  they  are  taken. 
But  before  the  Register's  Court  the  witness  is  protected  by  a  court 
accustomed  to  manage  and  control  the  taking  of  testimony. 

Knowing  the  importance  of  the  deposition  of  Gloninger  (who 
wrote  the  will),  we  gave  the  preliminary  evidence  of  his  inability 
to  attend.  It  is  true  it  was  agreed  that  our  offer  on  this  point  in 
the  second  bill  should  be  received,  but  at  the  same  time  the  court 
overruled  the  deposition  ;  showing  that  the  court  considered  that  no 
testimony  could  be  given  which  would  warrant  the  introduction  of 
the  deposition.  But  it  is  denied  that  a  discretion  exists  in  the  court 
below  to  reject  evidence,  which  is  not  controlled  here. 

The  court  below  is  called  to  make  a  hasty  decision,  and  it  would 
be  monstrous  to  say  that  there  is  no  review  of  such  decision  reject- 
ing evidence  on  the  preliminary  inquiry. 

In  the  case  of  Pipher  v.  Lodge,  16  S.  &  R.  220-21,  the  chief 
justice  expressly  affirms  the  position  that  such  decision  is  the  sub- 
ject of  review.  Every  question  is  for  the  discretion  of  the  court, 
but  it  does  not  follow  that  the  exercise  of  that  discretion  is  conclu- 
sive:  Harwood  v.  Ramsey,  15  S.  <fc  R.  32. 

This  is  not  the  case  of  a  contract  in  which  all  the  parties  bind 
themselves,  so  that  the  act  of  one  is  the  act  of  all,  but  it  is  a  case 
in  which,  although  the  legatees  and  devisees  have  a  community  of 
interest  in  establishing  the  will,  they,  as  respects  each  other,  are 
strangers. 

The  case  in  1  Mass.  71  is  directly  to  this  point,  and  has  not  been 
impaired.  So  is  Bovard  v.  Wallace,  and  Nussear  i\  Arnold.  In 
the  last  case  the  ground  taken  here  was  considered.  It  was  alleged 
that  Margaret  King,  whose  declarations  were  offered,  was  not  only 
the  principal  devisee,  whose  agent  the  nominal  party  on  the  record 


318  SUPREME  COURT  [Lancaster 

[Dietrich  r.  Dietrich.] 

was,  but  deeply  implicated  in  a  conspiracy  and  fraud  in  obtaining 
the  will. 

If  there  are  two  trustees,  and  both  sue,  the  declarations  of  one 
are  not  evidence.  There  is  no  privity  of  contract  between  them  ; 
where  this  privity  exists,  as  in  the  case  of  a  joint  contract,  it  is 
otherwise.  This  distinction  explains  the  cases  referred  to  in  17  Johns. 
R.  335,  and  18  Id.  330 ;  the  parties  were  united  in  interest,  and 
the  declarations  of  one  were  received  to  affect  the  others. 

GIBSON,  C.  J.,  delivered  the  opinion  of  SMITH,  J.,  and  himself, 
while  HUSTON,  J.,  delivered  the  opinion  of  Ross,  J.,  and  himself. 

GIBSON,  C.  J. — I  have  so  often  been  accused  of  an  attachment 
to  common-law  principles  and  forms  in  preference  to  local  practice, 
that  it  gives  me  pleasure  to  testify,  in  this  instance,  a  paramount 
respect  for  our  own  precedents.  This  court  had  flattered  itself  that 
the  law  was  settled  by  Bovard  v.  Wallace,  and  Nussear  v.  Arnold, 
(which  is  this  very  case,)  if  not  in  conformity  to  common-law  anal- 
ogies, at  least  consistently  with  justice  and  reason  ;  and  even  were 
my  opinion  of  the  fitness  of  those  decisions  changed,  I  would,  to 
avoid  the  mischiefs  which  are  inevitably  produced  by  overturning 
the  solemn  decisions  of  the  court  of  the  last  resort,  for  theoretic 
reasons,  adhere  to  the  known  landmarks  of  the  law  by  which  courts 
and  counsel  may  proceed  with  safety  and  certainty.  I  am  happy 
to  say  my  brother  Smith  concurs  with  me  in  opinion  that  the  ad- 
missions of  Henry  Dietrich,  a  principal  devisee,  and  party  to  the 
feigned  issue,  were  erroneously  received;  and,  the  court  being 
equally  divided  on  this  point,  the  authority  of  the  cases  to  which  I 
have  referred  is,  as  yet,  untouched.  On  the  remaining  point,  I 
would,  for  the  sake  of  unanimity,  be  inclined  to  yield  the  opinion 
I  expressed  in  Pipher  v.  Lodge,  16  S.  &  R.  214,  as  the  authorities 
are  nearly  balanced  on  the  question,  whether  the  sufficiency  of  evi- 
dence to  lay  a  ground  for  the  introduction  of  a  deposition,  can  be 
re-examined  on  a  writ  of  error ;  but  as  Judge  Smith  holds  out  on 
this  point  also,  I  am  inclined  to  sav  the  judgment  ought  to  be  re- 
versed on  both  points. 

HUSTON,  J. — The  first  two  bills  of  exception  were  in  this  court 
argued  together,  but  an  attempt  was  made  to  draw  a  distinction 
between  them,  by  reading  the  part  within  brackets,  without  the 
words  "  to  prove,"  and  considering  the  rest  of  the  sentence  .'is  a  state- 
ment of  facts  admitted,  and  by  using  the  words,  "  but  at  the  same 
time  the  court  overruled  the  said  deposition,"  as  conveying  the  idea 
that  although  the  court  allowed  them  in  words  to  prove  the  alle- 
gation in  brackets,  yet  in  fact,  they  decided  without  hearing  such 
facts  proved;  beyond  a  doubt,  the  deposition  was  offered  the 
second  time  for  the  purpose  of  accompanying  it  with  the 


May  1830.]  OF  PENNSYLVANIA.  319 

[Dietrich  v.  Dietrich.] 

record  of  the  issue  in  which  it  was  taken :  because  to  enable 
one  to  read  a  deposition,  taken  in  a  former  cause,  or  in  another 
court,  between  the  same  parties,  you  must  show  that  there  was 
such  a  cause  in  such  court ;  so  the  court  understood  it.  There  was 
no  offer  to  give  further  evidence  of  inability  to  attend.  If  offered 
and  refused  we  should  have  heard  of  it.  To  consider  a  bill  of  ex- 
ceptions, on  account  of  some  inaccuracy  of  expression,  as  present- 
ing a  case  so  different  from  the  real  facts,  as  that  counsel  will  not 
even  assert  events  to  have  happened  as  they  now  allege  them,  would 
be  to  pervert  a  bill  of  exceptions  to  the  worst  purpose.  Was  this 
deposition  evidence  if  the  witness  was  standing  in  court,  and  if 
not,  was  the  proof  of  inability  to  attend  such  as  that  it  was  error  in 
the  court  below  to  reject  it  ? 

In  the  first  view,  the  principal  part  of  the  argument  was  founded 
on  reading  the  first  sentence  of  the  Act  of  Assembly  as  far  as  the 
words  "made  part  of  the  proceedings  in  the  case ;"  and  to  be  sure, 
if  no  other  words  had  followed,  the  argument  was  strong.  The  act 
contemplates  two  classes  of  cases,  one  where,  on  caveat,  the  whole 
matter  is  heard  and  decided  by  the  Register's  Court  without  the 
intervention  of  a  jury,  and  here  all  the  testimony  must  be  reduced 
to  writing,  and  forms  part  of  the  proceedings,  and  if  an  appeal  be 
taken,  goes  up  as  part  of  the  cause. 

The  other  class  is  where  the  weight  and  effect  of  the  evidence  is 
not  submitted  to  the  Register's  Court,  but  to  a  jury ;  and  as  there 
the  mode  of  proceeding  is  by  examination  of  witnesses  in  presence 
of  the  jury,  and  their  finding  is  conclusive  on  the  facts  submitted, 
the  testimony  given  before  them  does  not  go  up  on  appeal,  nor  is  it 
known  to  the  superior  court.  Suppose  the  testimony  of  the  wit- 
nesses to  the  will  is  reduced  in  writing  in  the  Register's  Court,  and 
from  this  testimony  it  would  appear  to  be  a  valid  will,  yet  an  issue 
is  directed,  and  on  the  whole  evidence  the  jury  find  it  is  not  the 
will  of  the  testator ;  those  depositions  are  not  within  the  words  of 
the  Act  of  Assembly,  and  if  sent  up  on  an  appeal  must  be  consid- 
ered as  no  part  of  the  record,  or  an  immaterial  part. 

In  ordinary  cases  the  witnesses  go  before  the  Register  and  make 
oath  that  they  saw  the  testator  execute  and  deliver  the  paper  as  his 
last  will  and  testament,  and  that  he  was  of  sound  mind.  These 
affidavits  are  endorsed  on  the  will,  and  letters  testamentary  are 
granted  to  the  executors.  In  giving  copies  of  the  will,  it  was  usual, 
and  at  one  time  was  thought  necessary,  to  give  copies  of  these  affi- 
davits. It  was,  however,  long  ago  decided  that  a  copy  of  the  will, 
and  a  copy  of  the  record  that  it  was  on  such  day  proved  and  ap- 
proved, was  sufficient.  This  certificate  of  the  proof,  and  that  it  was 
approved,  is  the  real  and  true  probate,  and  what  makes  it  evidence 
in  any  and  every  court.  If  the  affidavits  of  the  witnesses  are 
added,  along  with  this  certificate,  they  are  often  called  the  probate, 
and  read  along  with  it,  though  the  witnesses  are  standing  in  the 


320  SUPREME  COURT  [Lancaster 

[Dietrich  v.  Dietrich.] 

court  wnere  the  will  is  offered  in  evidence ;  and  in  all  the  cases 
where  such  affidavits  have  been  read,  it  will  be  found  that  the  Regis- 
ter or  Register's  Court  have  acted  on  them,  and  adjudged  the  will 

fj  '  ir  O 

to  be  proved.  Where  these  depositions  have  not  been  acted  on, 
and  no  adjudication  on  the  validity  of  the  will,  they  may  be  used 
as  any  other  deposition  taken  before  a  court  having  jurisdiction  of 
the  same  matter  afterwards  trying  in  another  court ;  that  is,  may 
be  used,  if  the  deponent  is  dead,  out  of  the  jurisdiction  of  the  court, 
or  unable  to  attend.  It  appears  Mr.  Gloninger  had  been  twice  ex- 
amined in  open  court,  on  trials  of  this  cause,  before  the  same  judges 
who  rejected  this  deposition.  In  most  cases  in  this  state,  and  in  all 
of  much  importance,  the  counsel  on  each  side,  and  the  court,  write 
what  the  witness  says,  and  all  that  he  says  (for  he  stops  at  the  end 
of  each  sentence  until  it  is  written),  we  cannot  suppose  these,  depo- 
sitions I  may  call  them,  were  lost.  They  were  not  offered  to  be 
given  in  evidence.  The  president,  and  perhaps  both  the  judges, 
knew  Mr.  Gloninger  and  the  witnesses  who  swore  to  his  state  of 
health.  They  had  also  witnessed  his  former  examinations  and 
cross-examinations  in  court,  and  they  could,  although  we  cannot, 
judge  of  the  importance  of  his  being  examined  in  the  presence  of 
the  jury.  I  cannot  allow  that  a  particular  temperament  of  body  in 
the  witness,  unless  very  peculiar  indeed,  can  change  the  law.  If  a 
witness  intends  to  tell,  and  does  tell  the  truth  fairly,  there  is  no 
reason  why  he  should  become  much  excited,  or  why  his  choler 
should  rise  so  as  to  endanger  apoplexy ;  and  if  he  will  become  ex- 
cited in  a  particular  cause,  and  will  answer  so  as  to  make  a  tedious 
cross-examination  necessary,  it  is  right  the  jury  should  see  and  hear 
him.  There  are  two  cases,  and  1  recollect  but  two,  where  this 
court  have  reversed  because  the  court  below  erred  in  receiving  or 
admitting  a  deposition  on  account  of  a  defect  of  proof  of  inability 
to  attend ;  one  was  a  very  early  case ;  and  there  are  seven  or  eight 
where  it  is  said  to  be  a  matter  pretty  much  depending  on  the  dis- 
cretion of  the  court  who  try  the  cause.  The  question  whether  such 
proof  has  been  given  of  inability  to  procure  a  written  paper,  in 
order  to  let  in  parol  evidence  of  its  contents,  is  like  this  in  princi- 
ple. I  recollect  two  cases,  Magil  r.  Caufman,  and  another,  both 
reported,  in  which  this  court  refused  to  reverse,  or  even  seriously 
consider  the  matter,  saying  it  was  within  the  jurisdiction  and  de- 
pended on  the  discretion  of  the  court  below.  This  court  docs  not 
now  say  that  there  can  be  no  case  in  which  we  will  reverse  on  such 
account,  but  we  say  it  must  be  a  very  strong  and  gross  case  in 
which  we  will  interfere,  and  we  think  this  not  such  a  case. 

The  next  two  bills  of  exception  were  argued  together,  and  they 
present  the  question  whether  in  such  an  issue,  the  declarations  or 
admissions  of  the  principal  devisee  in  the  alleged  will,  arid  who  is 
sole  plaintiff  in  the  cause,  can  be  given  in  evidence?  Perhaps  the 
decisions  of  this  court  on  this  point  have  been  peculiar  to  this  state, 


May  1880.]  OF  PENNSYLVANIA.  321 

[Dietrich  v.  Dietrich.] 

except  one  early  case  in  Massachusetts.  They  seem,  however,  care- 
fully either  to  keep  clear  of  this  case  or  admit  it :  Bovard  v.  Wal- 
lace, 4  S.  &  II.  499.  In  questions  on  the  validity  of  a  will,  the 
declarations  of  an  executor  or  devisee,  who  is  not  a  party  to  the 
suit,  are  not  evidence. 

The  case  of  Nussear  v.  Arnold,  13  S.  &  R.  323,  is  still  stronger. 
The  question  there  was,  whether  the  declarations  of  a  devisee,  who 
was  carrying  on  the  cause,  and  whose  agent  was  the  plaintiff  in  tne 
feigned  issue,  should  be  given  in  evidence.  And  in  the  argument 
and  decision  it  seems  to  be  taken  for  granted,  that  if  the  devisee 
had  been  a  party  there  would  have  been  no  dispute.  The  objection 
that  these  admissions  may  afl'ect  the  rights  of  other  devisees,  has 
not  been  of  so  much  avail  in  other  courts.  In  17  Johns.  335  and 
18  Id.  330,  the  recital  in  a  deed  and  the  parol  declarations  of  one 
of  several  lessors  in  ejectment  were  admitted,  although  they  might 
affect  the  other  lessors. 

The  admissions  of  sanity  or  insanity  by  a  devisee  is  one  thing, 
the  repeated  admission  that  a  man  of  ninety  years  of  age  was 
childish,  and  becoming  more  so  every  day,  is  another  and  stronger 
matter,  when  the  fact  trying  is  whether  the  very  person  who  made 
this  declaration  or  admission,  did  not  at  that  very  time,  or  soon 
after,  procure  the  will  to  be  made  by  misrepresentation  and  imposi- 
tion on  this  weakness.  The  cases  cited  prove  the  general  position 
that  the  declarations  of  a  party  on  record,  and  who  has  an  interest  in 
the  cause  trying,  are  in  all  cases  evidence.  We  think,  therefore, 
that  as  well  as  the  cases  in  this  court  (which  always  except  the  case 
where  devisee  is  no  party  to  the  suit),  as  the  uniform  current  of 
authorities  require  that  we  affirm  the  decision  of  the  Common  Pleas 
on  these  two  bills. 

The  last  bill  of  exceptions  was  not  insisted  on.  The  declarations 
of  a  married  woman  in  the  presence  of  her  husband  or  when  act- 
ing as  his  agent,  are  evidence  against  him,  but  generally  they  are 
not. 

ROGERS,  J.,  had  been  of  counsel  in  the  cause,  and  took  no  part. 

Judgment  affirmed. 

This  case  is  not  a  precedent,  4  W.  167. 


1  P.  &  W.— 21 


322  SUPREME  COURT  [Lanca»tn 


Appeal  by  John  Feather,  attorney  in  fact  of  John 
Oblinger,  and  of  George  Feather  and  Susanna 
his  wife,  from  the  decree  of  the  Circuit  Court,  in 
the  matter  of  the  money  paid  into  the  Orphans' 
Court,  arising  from  the  sale  of  the  real  estate  of 
Christian  Oblinger  deceased. 

The  return-days  of  process  into  the  Circuit  Court  from  the  Common  Pleas, 
Quarter  Sessions  or  Orphans'  Court,  by  Act  of  Assembly,  are  the  third  Mon- 
day in  March,  the  first  Monday  in  September,  and  the  second  Monday  in  De- 
cember in  each  year.  A  certiorari  is  not  necessary  to  remove  a  record  on 
appeal  from  the  Orphans'  Court  to  the  Circuit  Court. 

Where  an  appeal  is  taken  from  the  Orphans'  Court  to  the  Circuit  Court, 
the  appeal  is  not  required  to  be  filed  before  the  next  return-day  after  it  ia 
taken,  nor  can  any  rule  be  taken  in  the  case  until  then :  but  if  the  record  be 
filed  before  the  return-day,  and  the  cause  is  heard  and  decided  by  the  Cir- 
cuit Court  without  objection,  it  is  too  late  to  take  that  objection  in  the  Su- 
preme Court,  after  the  cause  is  brought  there  upon  appeal  by  a  motion  to 
quash.  Generally,  if  a  party  goes  to  trial  by  consent  in  a  lower  court,  at  an 
earlier  term  than  he  was  compellable  to  do,  if  he  make  no  objection  then,  hia 
objection  will  not  avail  him  afterwards. 

C.  0.  made  his  will  in  1798,  and  died  soon  after,  seised,  as  he  supposed  of 
a  large  real  estate.  By  his  will,  after  disposing  of  his  personal  estate,  he 
directed  that  his  land  should  be  occupied  in  a  certain  manner  for  three 
years,  then  valued  by  twelve  men,  and  his  son  John  have  the  right  to  take 
it  at  the  appraisement ;  if  he  refused,  the  other  children  in  succession  to  have 
the  right;  if  none  agreed  to  take  it,  it  was  to  be  sold  by  the  executors,  and 
in  either  event  the  money  divided  among  his  heirs.  "But  the  sum  of  400/. 
if  to  be  charged  on  the  said  estate,  and  remain  in  the  hands  of  the  pur- 
chaser.'' 

Th»*  interest  on  this  sum  he  directed  to  be  paid  to  his  wife,  and  at  her 
death  this  sum  to  be  divided  among  his  three  eldest  children  or  their  heirs ; 
''and  us  touching  the  money  arising  from  my  land  and  estate,  I  give  and 
bequeath  to  my  son  J.  0.  first  and  foremost,  KKK)/.,  because  he  is  my  only 
son,  along  with  his  share  which  he  shall  have  with  my  other  children." 
His  personal  estate  was  exhausted,  and  his  real  estate  sold  on  execution 
within  two  years  after  his  death  ;  a  balance  of  400/.  in  1H01  was  decreed  to 
be  put  to  interest,  and  the  interest  paid  the  widow.  Widow  died  in  1M)3,  and 
in  1*14  a  scire  facias  was  issued  upon  the  judgment  given  to  secure  the  4(K)/., 
in  which  a  verdict  was  rendered  in  lKl*o,  and  the  proceeds  brought  into  the 
Orphans'  Court  for  distribution  in  Ih'JH. 

I/dd,  that  J.  0.  was  not  entitled  to  be  paid  out  of  this  fund  his  legacy  of 
1000/.  :  but  that  he  took,  as  to  this  an  equal  share,  as  one  of  the  "  tlireo 
oldest  children"  of  the  testator,  that  his  interest  in  the  fund  was  personal, 
not  real  estate,  ami  a  judgment  against  him  no  lien  on  it. 

J.  0.  had  Uiken  the  benefit  of  the  insolvent  laws  in  1800;  the  assignees 
then  appointed  had  not  qualified,  and  were  dead:  Held,  that  the  Orphans' 
Court  should  retain  this  fund  until  the  next  term  of  the  court  at  which  he 


May  1830.]  OF  PENNSYLVANIA.  323 

[Feather's  Appeal.] 

was  discharged,  to  have  assignees  appointed  to  receive  it,  but  if  none  were 
then  appointed,  it  should  be  paid  to  J.  0. 

By  the  express  provision  of  the  insolvent  law  the  Statute  of  Limitations 
does  not  run  against  debts  due  by  an  insolvent  debtor. 

Lapse  of  time,  much  greater  than  that  allowed  by  the  statute,  may  raise  the 
presumption  of  the  payment  of  such  debts  ;  but  when  the  creditor  returns  no 
fund  but  a  debt  to  become  due  on  a  future  contingency,  no  presumption  of 
payment  would  arise  before  the  fund  came  to  hand. 

When  an  appeal  is  taken  from  a  decree  of  the  Orphans'  Court,  it  would 
be  wrong  in  that  court  to  order  the  money  to  be  paid  over  under  that  decree, 
while  the  recognisance  is  writing,  or  the  party  bringing  in  his  bail. 

A  MOTION  was  made  by  Hopkins,  to  quash  this  appeal,  on  the 
ground  that  the  cause  was  not  in  the  Circuit  Court  when  the 
decree  of  that  court  was  made.  On  the  19th  April  1830,  the 
Orphans'  Court  made  their  decree  in  the  case  from  which  this 
appeal  was  taken,  and  a  certiorari  issued,  tested  the  loth  day  of 
March  1830,  and  returnable  the  first  Monday  of  September  then 
next;  and  on  the  3d  of  May  1830,  the  Circuit  Court,  upon  argu- 
ment, affirmed  the  decree  of  the  Orphans'  Court,  from  which  this 
appeal  was  taken. 

He  contended  that  the  cause  was  not  in  the  Circuit  Court  before 
the  return-day  of  the  certiorari,  and  the  decree  of  that  court  was 
therefore  without  jurisdiction. 

Montgomery  and  Norris,  contra,  argued  that  the  writ  of  certiorari 
was  unnecessary  ;  by  the  appeal  the  record  was  removed  without 
it,  but  as  the  party  had  voluntarily  appeared  before  the  return-day 
of  the  writ,  and  the  cause  was  then  heard,  he  could  not  now  allege 
want  of  jurisdiction  in  the  court. 

The  court  overruled  the  motion  to  quash,  for  reasons  assigned  in 
the  opinion  of  the  court,  and  ordered  the  appeal  to  be  argued. 

The  case  was  this :  Christian  Oblinger,  seised  of  a  large  estate, 
made  a  will,  dated  the  8th  of  December  1798,  by  which,  after  pro- 
viding that  his  burial  charges  and  debts  should  be  paid,  he  directed 
that  his  wife  should  keep  in  her  possession  his  other  estate  for  her 
subsistence  and  use,  as  she  shall  find  it  necessary.  That  his  son, 
John  Oblinger,  should  live  in  the  large  house  with  his  mother,  and 
work  the  plantation  for  her.  Of  what  he  sowed  and  gathered  in, 
two-thirds  were  to  be  his,  and  one-third  part  his  mother's.  Then, 
after  directing  as  to  cider,  fruit,  flax,  firewood,  itc.,  to  be  furnished 
her,  he  says,  such  fee  or  rent  shall  continue  three  years  :  after  that, 
the  plantation  was  to  be  valued  by  a  jury  of  twelve  men.  His  son 
John  was  to  have  a  right  to  take  it  according  to  the  valuation  ;  if 
he  did  not,  another  of  his  heirs  was  to  have  that  privilege.  Three 
months  after  the  valuation  the  money  was  to  be  paid  to  his  execu- 
tors, who  were  to  give  a  deed  to  the  purchaser.  If  none  of  the 
heirs  took  it,  it  was  to  be  sold  and  the  money  thence  arising  to  be 
divided  among  his  heirs.  But  the  sum  of  400/.  was  to  be  charged 


3:24  SUPREME  COURT  [Lancaster 

[Feather's  Appeal.] 

on  the  said  estate,  and  remain  in  the  hands  of  the  purchaser,  the 
interest  of  which  he  gave  to  his  wife,  "along  with  the  lesser  house 
for  her  to  dwell  in  as  long  as  she  lived,  and  all  the  household  and 
kitchen  furniture  to  be  used  at  her  pleasure."  After  her  death, 
the  4UO/.,  and  what  was  left  of  the  household  and  kitchen  furniture, 
were  to  be  divided  among  his  three  eldest  children  or  their  heirs. 
He  then  proceeds:  ''and  further  touching  the  money  arising  out 
of  my  land  and  estate,  I  give  and  bequeath  to  my  son,  John  Oblin- 
ger,  first  and  foremost,  1000Z.,  because  he  is  my  only  son,  along 
with  his  share,  which  he  shall  have  with  my  other  children."  After 
giving  to  his  son-in-law,  Nicholas  Zillcr,  Is.,  and  to  his  sons-in-law, 
George  Feather  and  Peter  Feather,  and  the  son  of  Peter  Feather, 
the  sums  received  of  him,  he  directs  that  Peter  Feather's  son,  born 
of  his  daughter  Mary,  shall  have,  if  he  arrived  "  at  the  age  of 
twenty-one  years,  150/.,  which  his  executors  should  retain  in  the 
sum  of  his  plantation  till  he  becomes  of  age."  But  if  he  died  be- 
fore the  age  of  twenty-one  years,  the  money  should  be  given  to  his 
other  three  children  as  a  legacy,  by  his  executors,  to  each  50Z. 
Further,  he  willed  that  his  eldest  daughter,  after  she  had  received 
her  share  for  her  and  her  heirs  of  his  executors,  might  choose  and 
appoint  guardians  for  her  and  her  heirs;  and  she  should  have  a 
right  to  make  use  of  said  sums  as  need  and  her  circumstances 
required,  and  demand  it  of  her  guardian.  If  his  wife  died  before 
the  expiration  of  the  three  years  mentioned,  his  executors  were  to 
have  what  there  was  of  the  personal  property  appraised,  and  do  as 
above  mentioned  with  his  plantation:  "but  always  that  my  son, 
John  Oblinger,  may  keep  my  plantation  at  the  appraisement,  if  he 
fulfils  the  said  articles  and  payment."  After  naming  his  executors, 
and  revoking  and  annulling  other  wills,  and  dating  the  will,  he 
added  two  other  items,  by  which  he  bequeathed  to  his  grandchild, 
Elizabeth  Feather,  one  complete  bed  and  bedstead,  and  directed, 
that  after  the  decease  of  his  wife,  she  should  have  the  sum  of  50J., 
out  of  his  estate:  and  then  willed  and  ordered  that  his  daughter, 
Barbara,  should  have  the  sum  of  oO/.,  after  the  decease  of  his  wife; 
and  declared  it  to  be  his  full  meaning  and  will  that  she  should  be 
considered,  and  be  an  heir  as  one  of  his  four  children  ;  but  to 
Nicholas  /iller  he  only  bequeathed  as  above. 

After  the  death  of  testator,  which  happened  before  the  27th 
December  1798,  his  personal  estate  was  exhausted,  and  his  real 
estate  in  two  years  after  his  death,  was  sold  on  executions,  and  the 
sum  of  750/.  only  remained  after  the  payment  of  his  debts.  This 
being  brought  into  the  Orphans'  Court,  that  court,  on  the  2iHh 
September  1801,  decreed  the  sum  of  400/.,  bequeathed  by  the 
testator's  will  to  his  widow,  to  be  put  out  on  real  security,  and  the 
interest  thereof  to  be  paid  to  her  during  her  life,  and  after  her 
death,  that  the  principal  be  paid,  and  distributed  to  and  among  the 


May  1830.]  OF  PENNSYLVANIA.  325 

[Feather's  Appeal.] 

legal  representatives  of  the  testator,  according  to  law,  and  the  order 
of  the  court. 

This  sum  was  loaned  to  John  Bitzer,  who  gave  his  judgment- 
bond  for  it,  upon  which  judgment  was  entered  to  November  terra 
1801.  On  this  judgment  a  scire  facias  issued  in  1814,  which  was 
transferred  from  the  Common  Pleas  to  the  District  Court,  to  June 
term  1820,  and  tried  on  the  9th  September  1824,  and  the  money 
now  in  court  was  made  on  that  judgment. 

The  remaining  sum  of  350Z.  was  divided  equally  among  the 
children,  without  regard  to  the  legacy  of  WOOL  to  John. 

The  widow  died  in  1803.  John  Oblinger,  Susanna  intermarried 
with  George  Feather,  and  Barbara  intermarried  with  Nicholas  Zil- 
ler,  were  the  "three  eldest  children"  of  the  testator,  between  whom 
he  directed  the  400?.,  after  the  death  of  his  wife,  to  be  divided. 

Upon  the  trial  of  the  scire  facias,  the  defendants  established  the 
payment  of  one-third  of  the  400/.,  her  share,  to  Barbara  Ziller ; 
also  of  50/.  to  John  Oblinger,  and  60?.  to  Susanna  Feather ;  and 
verdict  was  rendered  for  the  balance  of  two  shares.  The  defendants 
claimed  a  credit  of  561.  5s.,  paid  on  the  1st  of  June  1806.  to  John 
Shaeffer,  intermarried  with  Elizabeth  Feather,  on  account  of  the 
legacy  of  50/.  bequeathed  to  her,  but  the  receipt  for  this  payment 
was  overruled,  and  as  to  that  sum  it  was  agreed  by  the  counsel  of 
the  parties  to  leave  the  question  "open  for  consideration  on  the 
final  settlement  of  Christian  Oblinger's  estate." 

Susanna's  share,  amounting  to  the  sum  of  $286.56,  was  paid 
over  to  her  by  Mr.  Buchanan,  the  counsel  of  the  plaintiff  in  the 
scire  facias.  And  the  amount  paid  into  the  Orphans'  Court  was 
the  sum  of  $296.75,  the  payment  to  Sheaffer,  with  its  interest,  and 
the  amount  of  John's  share  being  $345. 76|,  supposing  the  56Z.  5s. 
to  have  been  rightly  paid. 

The  executors  of  John  Bitzer  claimed  to  be  paid  the  said  sum  of 
$296.75,  on  account  of  the  payment  to  Shaeffer. 

John  Oblinger,  by  his  attorney  John  Feather,  claimed  to  be  paid 
his  share,  $345.76$  ;  also  the  one-half  of  the  said  sum  of  $296.75, 
and  George  Feather,  in  right  of  his  wife,  claimed  the  other  half  of 
that  sum. 

David  Rinehart  claimed  as  a  judgment  and  bond  creditor  of  John 
Oblinger,  "  who  took  the  benefit  of  the  insolvent  laws  in  the  Court 
of  Common  Pleas  of  Lancaster  county,  at  August  term  1801,"  to 
be  paid  the  whole  fund  in  court. 

David  Rinehart's  judgment  against  John  Oblinger  was  entered 
on  the  20th  January*  1800,  to  November  term  1799~  On  the  24th 
September  1800,  on  affidavit  of  the  defendant,  a  rule  to  show 
cause  why  this  judgment  should  not  be  opened  was  taken,  and  on 
the  13th  February  1801  a  rule  to  take  depositions  entered.  This 
proceeding  there  rested,  nothing  further  having  been  done  upon  the 
rule. 


326  SUPREME  COURT  [Lancaster 

[Feather's  Appeal.] 

Rinchart  also  showed  a  bond  given  by  John  Oblinger  to  Charles 
Rinehart,  on  the  Gth  June  1798,  for  50/.,  assigned  on  the  2d  Au- 
gust 1800  to  him.  Also  a  judgment  in  favor  of  Michael  Bernd- 
heisly  against  John  Oblinger  and  David  Rinehart,  to  May  term 
1799,  on  a  bond  dated  9th  March  1798,  which  was  paid  by  the  said 
David  Rinehart. 

John  Oblinger  took  the  benefit  of  the  insolvent  laws,  to  August 
term  1800,  in  the  Court  of  Common  Pleas,  and  executed  an  assign- 
ment in  trust  for  his  creditors ;  the  assignees  never  gave  bond  and 
were  dead  at  the  time  the  decree  of  the  Orphans'  Court  was  entered 
in  this  case.  Oblinger,  after  taking  the  benefit  of  the  insolvent 
laws,  removed  to  the  state  of  Ohio. 

Motions,  corresponding  with  these  several  claims,  were  entered  in 
the  Orphans'  Court. 

That  court  denied  the  motion  made  on  behalf  of  Bitzer's  execu- 
tors (the  payment  to  John  Sheaffer  being  a  mispayment),  and  the 
motion  in  favor  of  David  Rinehart,  and  decreed  that  the  share  of 
John  Oblinger  should  be  paid  to  his  assignees,  legally  qualified  to 
receive  it,  and  that  the  fund  should  be  detained  until  the  Court  of 
Common  Pleas  should  make  an  appointment  of  assignees,  and  that 
the  one-half  of  the  sum  of  $296. 75,  the  sum  reserved  to  await  the 
question  as  to  the  payment  to  Sheaffer  by  Bitzer,  should  be  paid  to 
George  Feather,  in  right  of  his  wife,  the  assignees  of  John  Oblinger 
being  entitled  to  the  other  half. 

From  these  decrees  of  the  Orphans'  Court  each  party  appealed 
to  the  Circuit  Court,  who,  on  the  3d  of  May  1830,  affirmed  the 
decrees  of  the  Orphans'  Court ;  and  from  this  decree  of  the  Circuit 
Court  John  Feather,  attorney  in  fact  of  John  Oblinger,  and  George 
Feather  and  Susanna  his  wife,  appealed,  on  7th  May  1830,  to  the 
Supreme  Court,  for  the  following  reasons,  viz. : 

1.  Because  the  court  refused  to  order  to  be  paid  out  of  court  to 
John    Feather,   attorney   in   fact  of  John   Oblinger,   the  sum   of 
$345.76},  and  also  the  sum  of  §148. 37£  ;  and  also  because  the 
court  refused  permission  to  the  said  John  Feather,  attorney  in  fact 
of  George  Feather  and  Susanna  his  wife,  to  take  out  of  court  the 
sum  of  §148.37 J. 

2.  Because  the  court  decreed  that  the  sum  of  $345.76$  should 
be  paid  out  of  court  to   the  assignees  of  John   Oblinger,  if  such 
assignees  existed,  and  if  such  assignees  did  not  exist,  then  to  be 
paid  out  to  such  assignees  as  the  Court  of  Common  Pleas, should  or 
might  appoint. 

3.  Because  John  Feather,  attorney  in  fact  of  John  Oblinger  and  of 
George  Feather  and  wife,  has  in  law  and  equity  and  justice,  a  right 
to  take  out  of  court  the  said  sum  of  $645.51$  in  favor  of  his  con- 
stituents, the  said  John  Oblinger  and  George  Feather  and  wife,  the 
legatees  of  Christian  Oblinger,  deceased. 


May  1830.]  OF  PENNSYLVANIA.  327 

[Feather's  Appeal.] 

Montgomery,  for  the  appellants. — The  whole  fund  in  court  was 
claimed  as  belonging  to  John  under  the  bequest  to  him  of  1000J. 
by  David  Rinehart  on  his  judgment. 

He  contended  that,  by  a  fair  construction  of  the  will,  John  was 
only  entitled  to  one-third  of  the  400Z.  after  the  death  of  the  widow, 
but  that  the  decree  of  the  Orphans'  Court  of  1801  fixed  the  per- 
sons among  whom  the  money  was  ultimately  to  be  divided,  and 
recognised  the  right  of  the  three  eldest  children ;  and  that  this 
decree  would,  if  any  difficulty  existed  in  the  question,  control  the 
present  distribution  of  the  fund  in  court  as  to  this  point. 

He  took  two  grounds  in  opposition  to  the  claim  of  Rinehart  on 
his  judgment. 

1.  That  the  interest  of  John   Oblinger,   under  the  will  of  his 
father,  was  an  interest  in  a  legacy  only,  upon  which  a  judgment 
against  him  was  no  lien. 

2.  That  the  judgment  of  Rinehart  was  satisfied,  in  presumption 
of  law,  by  lapse  of  time. 

1.  By   the  will  the  testator  directed  that  his    land  should  be 
sold,  or  that  John  should  be  permitted  to  take  it  at  an  appraise- 
ment, but  that  his  executors  should  execute  a  deed  ;  and  John  was 
only  to  hav.e  a  share  of  the  value  or  price.     This,  although  a  charge 
upon  the  land,  was  no  interest  in  it  which  could  be  subjected  to  the 
lien  of  a  judgment. 

2.  It  was  true  that  John   Oblinger  had  taken  the  benefit  of  the 
insolvent  laws,  but  this  neither  arrested  the  operation  of  the  Statute 
of  Limitations,  nor  prevented  the  effect  of  lapse  of  time.     The  oper- 
ation of  the  Statute  of  Limitations  was  not  suspended  while  the 
Act  of  13th  March  1812,  "for  the  relief  of  insolvent  debtors  resid- 
ing in  the  city  and  county  of  Philadelphia,  and  their  creditors." 
was  held  by  the  courts  of  this  state  to  be  constitutional  and  valid  : 
Hudson  v.  Carey,  11  S.  &  R.  10 ;  Ing.  on  Int.  214,  215.    A  lapse 
of  twenty  years  satisfies  a  judgment,  and  here  more  than  twenty 
years  elapsed  from  the  death  of  the  widow  to  the  time  when  the 
claim  was  made  on  behalf  of  this  judgment.     The  presumption,  too, 
was  fortified  by  the  rule  taken  to  show  cause  why  the  judgment 
should  not  be  opened. 

The  controversy  was  between  John  Oblinger  and  Daniel  Rine- 
hart, and  the  Orphans'  Court  had  no  right  to  interpose  the  assignees 
of  Oblinger,  who  had  never  qualified,  who  did  not  claim,  and  "vho, 
in  fact,  were  dead,  to  arrest  the  fund  from  Oblinger. 

The  benefit  of  the  insolvent  laws  was  taken  by  him  in  1801,  the 
assignees  never  qualified,  and  in  law  the  debts  then  due  were  pre- 
sumed to  be  satisfied,  and  this  proceeding  abandoned. 

Again,  the  Orphans'  Court  has  no  jurisdiction  but  in  cases  of 
trust  under  the  Act  of  1713,  and  cannot  decree  money  to  a  stranger 
to  that  trust,  and  therefore  cannot  order  the  money  of  the  heir  ia 


328  SUPREME  COURT  [Lancaster 

[Feather's  Appeal.} 

his  creditor,  either  with  or  without  an  application.  The  remedy  of 
Rinehart,  if  his  judgment  were  not  satisfied,  was  by  foreign  attach- 
ment, lie  also  referred  to  Read's  Dig.  177  ;  Toller  on  Ex.  235  ; 
Ross  v.  McJunkin,  14  S.  &  R.  364 ;  Kane  v.  Bloodgood,  7  Johns. 
Ch.  90-113. 

Hopkins,  contra. — If  under  the  will  John  Oblinger  was  not 
entitled  to  the  whole  fund,  then  an  average  should  take  place  among 
the  legatees ;  and  in  that  event  Bitzer's  executors  should  be  allowed 
to  come  in  on  account  of  the  money  paid  to  Shaeffer  in  right  of  his 
wife  Elizabeth. 

But  he  contended  that  the  legacy  of  $1000Z.  to  John  was  entitled 
to  a  preference.  The  testator  had  thought  that  he  was  wealthy, 
and  his  will  was  made  under  this  impression  ;  but  it  turned  out  that 
his  estate  was  nearly  insolvent,  and  the  will  can  only  be  carried 
into  effect  cy  pres,  as  near  the  intention  of  the  testator  as  this  change 
of  circumstance  will  admit.  It  was  not  the  intention  of  the  testa- 
tor to  give  his  whole  estate  to  hie  wife ;  as  there  was  not  enough  to 
pay  all,  her  legacy  should  abate  in  proportion ;  nor  will  any  fair 
construction  of  the  will  authorize  the  distribution  of  the  fund  to 
the  three  eldest  children,  to  the  exclusion  of  the  other  legatees. 
Under  the  circumstances  of  the  fund,  the  true  construction  of  the 
will  would  be  to  distribute  the  fund  to  the  legatees  pro  rata.  He 
contended  that  as  it  appeared  by  the  will  that  the  legatees,  except 
John  and  Elizabeth,  had  been  advanced  in  the  lifetime  of  the  testa- 
tor ;  that  as  there  was  a  deficiency  in  assets,  these  advancements 
should  be  taken  into  view  in  regulating  the  proportions  which  each 
should  receive  out  of  the  fund. 

But  the  legacy  to  John  was  entitled  to  be  preferred.  The  will 
is  that  the  oldest  son  shall  first  receive  1000£. ;  and  the  testator 
assigns  the  reason  for  this  preference,  "  because  he  is  my  only 
son."  Every  expression  in  a  will  must,  if  possible,  have  effect 
given  to  it,  and  the  only  meaning  of  the  words  "first  and  fore- 
most," in  the  will  is  that  John's  legacy  is  to  be  preferred. 

He  contended  that  the  interest  which  John  took  under  the  will 
was  an  interest  in  the  realty,  and  subject  to  the  lien  of  judgments 
against  him.  If  John  had  taken  the  real  estate  at  the  appraise- 
ment under  the  will,  he  certainly  would  have  taken  it  as  land. 
The  fund  in  court  must  be  considered  as  if  the  intention  of  the 
testator  had  been  carried  into  full  effect.  The  sale  by  the  sheriff 
prevented  this  being  done  literally,  but  where  the  act  of  the  law 
encroaches  upon  the  intention  of  the  testator,  the  encroachment 
never  goes  beyond  the  necessity  of  the  case.  The  400/.  is  expressly 
charged  upon  the  land,  and  as  it  respects  John's  interest,  who  was 
to  have  taken  the  land  at  the  appraisement,  it  is  land.  That 
interest  has  been  converted  into  money,  but  the  nature  of  the  fund 
remains  unchanged :  Diennond  v.  Robinson  2  Yea  tea  324. 


May  1830.]  OF  PENNSYLVANIA.  329 

[Feather's  Appeal.] 

The  judgment  of  Rinehart  was  entered  before  the  sale  by  the 
sheriff;  it  was  then  a  lien,  and  this  sale  has  no  other  effect  than  to 
bring  borne  the  fund  for  distribution:  Nichols  v.  Postlethwaite,  2 
Dull.  131 ;  Gause  v.  Wiley,  4  S.  &  11.  509;  Reese  v.  Adams,  1C 
Id.  40 ;  Barnet  v.  Washebaugh,,  16  Id.  410 ;  Otty  v.  Ferguson,  1 
Rawle  294. 

The  circumstances  of  the  case  avoid  the  lapse  of  time,  which  is 
insisted  on  as  evidence  of  the  satisfaction  of  the  judgment.  The 
rule  taken  by  the  defendant  to  show  cause  why  the  judgment 
should  not  be  opened  is  one  circumstance  and  his  insolvency  and 
removal  from  the  state  another  circumstance.  And  besides  thi.->, 
the  property  in  question  was  in  action,  and  its  reduction  into  pos- 
session depended  upon  a  future  contingency.  But  by  the  Act  of 
Assembly  of  1729-30,  Read's  Digest  180,  in  case  of  insolvency, 
debts  are  protected  from  the  lapse  of  time.  The  right  to  the  fund 
depended  on  the  death  of  the  widow,  and  the  fund  itself  was  not 
recovered  until  1824,  arid  was  not  brought  into  court  for  distribu- 
tion until  1828.  The  suit  for  the  recovery  of  the  money  (the  scire 
facias),  was  prosecuted  for  the  interest  of  all  concerned.  That  was 
issued  in  1814 ;  from  the  death  of  the  widow,  in  1803,  until  this 
time,  the  only  delay  occurred,  and  that  is  insufficient  to  warrant  any 
presumption  of  payment.  From  that  time  the  rights  of  all  were 
actively  pursued:  Cope  v.  Humphreys,  14  S.  &  R.  15. 

The  court  were  right  in  arresting  the  fund  until  trustees  were 
appointed  under  the  application  and  discharge  of  Oblinger.  A 
change  of  trustees  of  an  insolvent  has  been  allowed  after  the  lapse 
of  sixteen  years,  where  the  first  trustees  had  never  qualified  :  Gray 
v.  Hill,  10  S.  &  R.  43G.  Until  the  trustees  do  qualify,  the  estate 
of  the  insolvent  is  in  gramio  legis. 

The  decree  of  1801  in  no  way  concludes  the  inquiry  now  before 
the  court,  as  by  the  terms  of  that  decree  the  fund  was  to  be  brought 
into  court  for  future  distribution. 

Norris,  for  the  appellants  in  reply. — The  Orphans'  Court  have 
no  jurisdiction  as  to  the  judgment-creditors  of  legatees,  when  the 
fund  on  which  the  legacies  are  a  charge  is  brought  into  court  for 
distribution.  The  Orphans'  Court,  although  it  is  a  court  of  chan- 
cery, has  its  power  limited, by  statutory  provision,  and  cannot  go 
beyond  the  statute. 

By  the  statutes  its  jurisdiction  is  confined  to  the  estates  of  dead 
men,  and  it  can  make  no  decree  in  favor  of  a  creditor  of  a  cftttui 
que  trust,  who  has  a  fund  within  its  jurisdiction.  It  has  the  inci- 
dental power  of  appropriating  money  to  liens  on  real  estate  of  re- 
cord, but  it  cannot  go  further.  Where  the  debtor  denies  the  debt, 
it  has  no  power  by  an  adversary  suit,  to  determine  the  question.  It 
has  no  power  to  direct  an  issue,  but  in  a  question  incidental  to  the 


330  SUPREME  COURT  [Lancaster 

[Feather's  Appeal.] 

estate  of  a  decedent.  To  suffer  this  court  to  direct  issues  in  any 
other  controversy,  would  be  to  make  it  a  court  of  chancery  with 
general  jurisdiction. 

The  judge  of  the  Orphans'  Court  had  no  right  to  go  out  of  his 
proper  forum  to  award  the  funds  to  assignees  who  had  no  existence, 
and  to  decide  that  the  Common  Pleas  would  create  them.  The 
creditors  of  Oblinger,  whom  the  court  undertook  thus  to  protect, 
had  no  subsisting  claim.  Direct  trusts,  created  by  deed  or  will,  as 
between  cestui  qiie  trust  and  trustee,  subsists  unaffected  by  lapse  of 
time.  They  are  created  by  contract,  and  not  by  operation  of  law. 
All  other  trusts  are  affected  by  the  Statute  of  Limitations,  and  lapse 
of  time.  And  a  stranger  to  the  trust,  who  acquires  an  incidental 
right,  as  against  the  cestui  que  trust,  will  be  barred  by  the  statute, 
and  his  right  effaced  by  time.  Where  the  assignee  does  not  act 
for  a  long  time,  the  assignment  is  presumed  to  have  been  aban- 
doned :  Adlum  v.  Yard,  1  Rawle  163. 

The  interest  of  Oblinger  under  the  will,  is  an  interest  in  person- 
alty and  not  in  the  land.  If  he  had  taken  it  at  the  appraisement, 
he  would  have  acquired  an  interest  in  the  real  estate ;  but  until  he 
did  this,  his  only  right  was  to  a  share  of  the  proceeds  of  the  sale  of 
the  land,  which  was  yet  never  adjudged  to  be  real  estate. 

The  legacy  to  the  wife  of  the  testator  was  specific,  and  for  that 
reason  is  not  to  abate.  She  was  the  chief  object  of  the  testator's 
bounty,  and  her  legacy  was  to  be  first  invested.  And  by  the  plain 
terms  of  the  will  upon  her  death,  the  legacy  thus  invested  was  to 
be  divided  among  the  three  oldest  children  of  the  testator.  The 
construction  of  the  will  is  derived  from  itself,  and  cannot  be  made 
to  vary  by  circumstances  occurring  after  the  death  of  the  testator, 
and  which  could  not  have  been  contemplated  by  him  when  he  made 
the  will. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J.,  (who  stated  the  facts.) — The  return-days  of  process, 
&c.,  brought  into  the  Circuit  Court  from  the  Common  Pleas,  Quarter 
Sessions  or  Orphans'  Court,  are  fixed  by  Act  of  Assembly,  and  are 
the  third  Monday  in  March,  first  Monday  in  September,  and  second 
Monday  in  December  in  each  year.  It  was  objected  here  that  as 
the  certiorari  removing  the  cause  from  the  Orphans'  Court  to  the 
Circuit  Court,  is  not  returnable  for  some  months,  we  cannot  pro- 
ceed with  the  hearing.  Whatever  may  have  been  the  case,  when 
the  appeal  from  the  Orphans'  Court  was  directed  to  the  Supreme 
Court,  certainly  a  certiorari  is  not  necessary  to  remove  an  appeal 
from  the  Orphans'  Court  to  the  Circuit  Court.  This  would  seem  to 
be  a  writ  not  issuable  by  the  Circuit  Court  after  judgment  by  any 
lower  court.  The  certiorari  and  its  return-day  are  then  laid  out  of 
the  case.  Is  the  appeal  from  the  Orphans'  Court  to  be  filed  before 


May  1830.]  OF  PENNSYLVANIA.  331 

[Feather's  Appeal.] 

the  next  sitting  of  the  Circuit  Court  in  the  county,  or  before  the 
next  return-day  ?  I  think  not  before  the  latter.  There  could  be  no 
rule  for  filing  exceptions,  or  non  pros,  for  riot  doing  so  until  the 
return-day  next  succeeding  the  appeal.  It  would  expedite  business 
were  it  considered  as  returnable  to  the  next  sitting  of  the  Circuit 
Court  in  that  county;  but  under  the  existing  laws  we  cannot  compel 
a  return  before  the  next  return-day.  But  here  the  appeal  was  filed, 
and  decided  by  the  Circuit  Court,  and  no  objection  on  this  ac- 
count made,  and  an  appeal  taken  to  this  court  where  the  objection 
is  first  heard.  We  think  it  cannot  avail  at  this  time,  it  is  too  late; 
and,  generally,  if  a  party  goes  to  trial  by  consent,  in  a  lower  court, 
at  an  earlier  term  than  he  was  compellable  to  do,  if  he  makes  no 
objection  then,  his  objection  will  not  avail  him  afterwards.  I  am 
glad  that  in  this  case  no  injury  is  done  to  the  party  who  alleged 
surprise. 

The  Orphans'  Court,  in  1801,  in  accordance  with  the  will, 
directed  400/.  to  be  put  out  at  interest,  on  bond  arid  judgment  bind- 
ing lands,  for  the  purposes  mentioned  in  the  will,  the  principal  pay- 
able at  the  death  of  the  widow.  Instead  of  noticing  the  bequest  of 
1000^.  to  John,  first  and  foremost,  the  remaining  350£.  pounds 
were  divided  equally  among  the  children  ;  a  judgment-creditor  of 
John's  got  his  share.  We  think  this  was  wrong,  but  it  is  not  be- 
fore us.  and  we  could  not  now  remedy  it  if  it  were.  The  widow 
died  in  November  1803,  but  the  executors  of  Oblinger,  to  whom 
the  bond  was  given,  did  not  collect  the  money,  nor  even  bring  suit 
till  1814,  and  the  cause  was  not  tried  and  money  raised  till  1828. 
The  executors  then  brought  it  into  the  Orphans'  Court,  and  several 
questions  were  made  as  to  the  distribution.  A  person  who  had  ob- 
tained a  judgment  against  John  claimed  it,  and  the  court  decided 
against  him  ;  he  then  brought  the  record  into  court  and  showed  that 
John  had  applied  for  the  benefit  of  the  insolvent  acts  ;  had  assigned 
to  trustees  for  the  use  of  his  creditors,  and  been  discharged.  The 
court  decided  the  judgment  was  no  lien,  and  rightly.  Whatever 
John's  interest  originally  was.  under  the  will  of  his  father,  in  the 
lands  of  his  father,  yet  when  those  lands  had  been  sold,  and  the 
money  brought  into  court,  and  was  again  put  out  to  interest,  it  be- 
came personalty;  the  bond  was  a  mere  chose  inaction  :  and  although 
judgment  was  afterwards  entered  on  it,  yet  whoever  heard  of  a 
judgment  being  a  lien  on  another  judgment  ?  The  court  next  de- 
cided that  they  could  not  award  the  rnonev  to  John,  as  his  interest 
was  vested  in  his  assignees,  and  it  made  no  difference  that  the  orig- 
inal assignees  were  dead,  and  no  successors  had  been  appointed. 
They  would  give  time  to  apply  to  the  Common  Pleas  to  appoint 
others.  This  opinion  was  clearly  right.  If  the  debtor  of  an  insol- 
vent who  has  assigned  pays  the  insolvent,  the  assignees  can  compel 
him  to  pay  again  to  them.  If  it  were  not  so  our  insolvent  acts 


332  SUPREME  COURT  [Lancaster 

[Feather's  Appeal.] 

would  be  a  fraud  on  the  creditors.  And  it  would  be  strange  if  our 
courts  were  not  bound  to  take  notice  of  a  general  law.  It  does  not 
alter  the  case  that  the  application  was  not  made  by  an  assignee. 
Chancery  when  informed  of  a  party  in  interest,  not  before  it, 
always  brings  him  in.  But  it  has  been  said  the  Statute  of  Lim- 
itations has  barred  all  claims  against  John,  or  that  from  the  lapse  of 
time  his  debts  are  presumed  to  be  paid.  Our  insolvent  act  of 
172!>-30,  and  every  act  since,  provides  that  notwithstanding  the 
discharge  of  the  insolvent  under  the  act,  all  debts  due  and  owing 
from  such  debtor,  and  all  and  every  judgment  had  and  taken  against 
him.  shall  stand  and  be  good  and  effectual  in  law,  to  all  intents 
and  purposes,  against  the  lands,  tenements  and  hereditaments,  goods 
and  chattels  of  such  debtor,  which  he  or  any  other  person  or  per- 
sons in  trust  for  him  at  the  time  of  his  discharge,  shall  have  had, 
or  at  any  time  thereafter  shall  or  may  be  in  an  way  seised  or  pos- 
sessed of,  interested  in,  or  entitled  to  in  law  or  equity.  This  would 
seem  to  put  the  Statute  of  Limitations  out  of  the  way  in  such  case ; 
but  further,  the  court  may,  on  consent  of  a  majority  in  number  and 
value  of  the  creditors,  make  an  order  that  the  insolvent  shall  not  be 
sued  for  seven  years. 

If  the  Statute  of  Limitations  runs  against  a  person  discharged 
under  the  insolvent  laws,  this  order  would  put  an  end  to  all  claims 
barred  by  a  lapse  of  six  years.  I  do  not  say  that  lapse  of  time, 
much  greater  than  that  allowed  by  the  statute,  will  in  no  case  raise 
a  presumption  of  payment.  This  will  often  be  the  case  when 
assignees  act  and  have  property  in  their  hands.  This,  however, 
was  not  such  a  case  as  would  justify  the  Orphans'  Court  in  at  once 
considering  these  debts  paid. 

Where  a  creditor  returns  no  funds,  but  some  debts  not  to  be  col- 
lected till  after  a  certain  event  (as  here  the  death  of  his  mother),  it 
would  be  strange  to  say  the  debts  were  to  be  presumed  paid  before 
the  fund  came  to  hand.  This  is,  however,  a  matter  to  be  decided 
in  the  Common  Pleas. 

The  Orphans'  Court  were  right  in  detaining  the  money  until 
assignees  should  appeal.  Those  assignees  will  be  trustees  for  the 
creditors,  and  for  .John,  if  there  are  no  creditors,  or  there  be  a  sur- 
plus after  payment  of  his  debts.  We  think,  however,  that  a  time 
should  have  been  limited  within  which  the  creditors  should  apply 
and  get  assignees  ;  John  is  not  to  wait  for  ever  in  suspense;  we 
therefore  confirm  this  part  of  the  decree,  with  this  addition,  that  if 
the  creditors  do  not  apply  and  get  assignees  who  will  give  security  at 
next  term  of  the  Common  Pleas,  in  August  1H30,  that  the  money 
be  paid  to  John  Oblinger  or  his  lawful  attorney. 

There  was  another  matter  mentioned  which  admits  of  no  doubt. 
One  of  the  sisters  prayed  the  money  awarded  by  the  decree  of  the 
court,  to  be  paid  to  her.  There  was  an  appeal  to  the  Circuit  Court, 


May  1830.] 


OF  PENNSYLVANIA. 


333 


[Feather's  Appeal.] 

and  a  few  minutes  or  a  few  hours  elapsed  before  the  recognisance 
of  bail  could  be  drawn  up,  and  bail  brought  before  the  court,  but 
it  was  done  the  same  day,  and  before  the  court  rose.  And  the 
court  refused  to  order  the  money  instantly  to  her ;  most  clearly  the 
court  were  right.  To  have  given  it  to  her,  under  such  circum- 
stances, while  the  recognisance  was  writing,  arid  bail  coming  in, 
would  have  been  grossly  wrong.  The  decree,  with  the  addition 
above  mentioned,  is  in  all  respects  confirmed. 

Decree  affirmed. 

The  dictum  that  the  Statute  of  Limitations,  does  not  run  against  the  debts 
of  a  debtor  discharged  under  the  insolvent  laws,  is  erroneous:  Gest  v.  Ileis- 
kill,  5  It.  13G;  Shoenbergert?.  Adams,  4  W.  430  ;  Sletor  v.  Grain,  1  Wh.  106. 


Gratz  et  al.  against  Phillips  et  al. 

An  agent  thus  proved  his  own  authority,  "  I  never  executed  any  other  deed 
of  defeasance  than  the  one  in  question.  I  frequently  wrote  letters,  signed 
receipts,  and  other  papers  of  consequence  for  him  (the  principal),  by  which 
he  at  all  times  considered  himself  bound.  I  kept  all  his  books  of  accounts  for 
upwards  of  thirty  years  ;  never  had  a  written  power  of  attorney.''  Held, 
that  a  deed  of  defeasance,  executed  by  such  an  attorney,  in  the  name  of 
his  principal,  is  not  evidence  to  convert  an  absolute  deed  to  the  principal  into 


A  wife  executrix,  whether  so  constituted  before  or  after  her  marriage,  may 
be-  sued  with  the  other  executors  ;  or  if  sole  executrix,  with  her  husband  ; 
and  in  either  case,  after  judgment  against  her  as  executrix,  may  have  a 
devastavit  lixed  on  her  and  her  estate,  and  her  personal  or  real  estate  sold  for 
it. 

Wherever  a  husband  and  wife  can  sue  or  be  sued  by  adversary  process, 
an  amicable  action  can  be  entered,  and  she  and  her  rights  are  as  much  bound 
as  if  the  proceeding  had  been  adversary. 

APPEAL  from  the  Circuit  Court  of  Lancaster  county,  held  by 
Gibson,  Chief  Justice. 

The  suit  was  instituted  by  the  following  agreement  : 


Simon  Gratz,  Joseph  Gratz,  and  ^ 
Jacob    Gratz,    Administrators 
of  Michael  Gratz,  deceased, 


v. 


Levi  Phillips,  Leah  Phillips  and 
Beliah  Cohen. 


Amicable  action  in  the  Com- 
mon Pleas  of  Lancaster  coun- 
ty of  January  Term  l^'2'2. 
Case. 


We  agree  that  the  above  action  on  the  case  be  entered  in  the 
Common  Pleas  of  Lancaster  county,  of  the  term  of  January  1822: 


334  SUPREME  COURT  [Lancaster 

[Gratz  ».  Phillips.] 

And  we  do  hereby  refer  all  matters  unsettled  and  in  variance  be- 
tween the  parties,  to  Casper  Shaffer,  Jr.,  John  Reynolds  and  Jo- 
seph Ogleby,  or  to  a  majority  of  them,  to  meet  at  the  house  of  Col. 
Jacob  Slough,  in  the  city  of  Lancaster,  at  any  time  the  parties 
shall  agree  upon,  upon  thirty  days'  notice,  and  to  make  their  award 
into  the  prothonotary's  office,  with  power  to  adjourn  from  time  to 
time,  until  the  cause  shall  be  decided ;  and  it  is  agreed  that  the  ar- 
bitrators shall  have  no  power  in  relation  to  any  lands  unsold  at  the 
time  of  instituting  this  suit,  and  that  no  advantage  be  taken  by  either 
party  as  to  the  form  of  suit,  or  the  liability  of  the  parties  in  it,  and 
that  the  award  and  judgment  thereon  be  final.  Witness  our  hands 
this  29th  January,  A.  D.  1822. 

SIMON  GRATZ, 

One  of  the  adm'rs  of  Michael  Gratz. 
LEV:  PHILLIPS, 

Executor  of  Joseph  Simon. 
MOLTON  C.  ROGERS, 

Attorney  for  defendants. 
J.  SIMON  COHEN, 

Attorney  for  defendants. 
WM.  NORRIS, 

Attorney  for  plaintiffs. 

The  award  made  under  the  above  agreement  was  set  aside. 
Narr.  was  then  filed  in  assumpsit  for  money  had  and  received  by 
defendants.  Defendants  plead  non  assumpserunt,  actio  non  ac- 
crevit  infra  sex  annos,  payment  with  leave,  &c.,  and  set-off;  repli- 
cation, non  solvit,  that  the  action  did  accrue  within  six  years,  and 
issues.  Replication  afterwards  added,  that  moneys  were  received 
by  defendants,  as  trustees,  to  which  there  was  no  rejoinder. 

The  origin  of  this  cause  was  a  partnership  in  trade  entered  into 
in  17GO,  between  Joseph  Simon,  William  Trent,  David  Franks  and 
Levy  Andrew  Levy.  Upon  the  settlement  of  their  accounts,  28th 
February  1769,  Trent  was  found  indebted  to  Simon  and  Franks,  on 
the  general  partnership  account,  4082/.,  and  to  Simon  on  his  sep- 
arate account,  for  which  he  held  his  bonds.  To  secure  the  payment 
of  the  debt  to  Simon  and  Franks,  Trent  then  executed  a  mortgage 
to  them  of  "  seven  thousand  five  hundred  acres  in  Cumberland 
county,"  and  conveyed  other  lands  to  Simon,  either  in  satisfaction 
or  as  security  for  his  separate  debt.  On  the  18th  May  1790,  Franks 
assigned  his  half  of  this  mortgage  to  Bernard  and  Michael  Gratz  ; 
and  on  the  28th  of  the  same  month  ten  tracts,  supposed  to  be  part 
of  the  mortgaged  lands,  were  sold  on  the  mortgage  and  bought  in 
by  Simon,  who,  on  the  2d  of  August  following,  executed  a  deed  de- 
claring that  he  held  these  ten  tracts  for  himself  and  Michael  Gratz  ; 
"  provided,  that  if  hereafter  the  said  assignment  from  said  Franks 


May  1830.]  OF  PENNSYLVANIA.  335 

[Gratz  v.  Phillips.] 

to  said  Gratz  should  prove  invalid,  that  then  this  present  acknowl- 
edgment shall  be  null  and  void."  On  the  9th  and  24th  of  same 
August,  Simon  bought  in  the  two  other  tracts  sold  on  the  mortgage. 
It  appeared  that  prior  to  the  assignment  of  the  half  of  the  mort- 
gage by  Franks  to  Bernard  and  Michael  Gratz,  Franks  had  by  a 
general  assignment  of  all  his  property  transferred  his  interest  or 
half  of  the  mortgage  to  a  certain  Tench  Coxe  and  J.  Hazelhurst, 
in  trust  to  pay  a  debt  to  Amos  Hayton,  and  that  about  the  year 
1802  Thomas  Billington  set  up  a  claim  on  this  transfer.  Mr. 
Simon  Gratz  then  gave  satisfactory  security  to  Mr.  Simon  against 
Billington's  claim,  and  Simon,  on  the  2d  July  1802,  executed  a 
new  declaration  of  trust  in  favor  of  Simon  Gratz,  for  the  benefit  of 
Michael  Gratz,  and  without  any  condition  whatever. 

After  this,  a  certain  John  F.  Mifflin  set  up  a  claim  under  Trent, 
to  a  number  of  tracts  which  he  alleged  were  not  included  in  the 
mortgage  from  Trent  to  Simon  and  Franks ;  a  compromise  was 
made  by  which  Simon  held  eight  of  the  twelve  tracts  purchased  at 
sheriff's  sale,  and  Simon  and  Mifflin  held  the  remaining  four  and 
seventeen  others,  as  tenants  in  common.  Simon's  interest  in  the 
lands  being  thus  changed,  on  the  12th  January  1804  he  executed 
another  declaration  of  trust,  in  favor  of  Michael  Gratz,  and  without 
any  condition  annexed,  but  with  a  clause  contained  therein  that 
Simon  and  his  representatives  shall  conduct  the  sales.  The  as- 
signment of  Franks,  under  which  Billington  claimed,  on  the  16th 
May  1793  was  transferred  to  George  Davis,  who  transferred  the 
same  to  Gratz  for  $000,  after  the  death  of  Simon. 

Joseph  Simon  died  24th  January  1804,  having  by  his  last  will 
and  testament  appointed  the  defendants,  his  son-in-law,  Levi  Phil- 
lips, and  his  two  daughters  Leah  and  Beliah,  to  be  his  executors, 
and  vested  in  them  power  to  sell  his  lands ;  by  this  authority  the 
lands  were  sold  at  different  periods  from  1804  until  1818  inclusive, 
and  the  money  received  by  Levi  Phillips.  The  plaintiffs  claim 
a  moiety  of  the  proceeds  of  sale  of  the  lands  held  by  deeds 
to  Simon  alone,  and  one-fourth  of  the  lands  held  by  Simon  and 
Mifflin. 

The  defendants  set  up  various  matters  of  defence. 

1st.  That  they  are  not  liable  to  account,  because  the  assignment 
of  the  18th  May  1790,  of  Franks  to  Bernard  and  Michael  Gratz, 
has  proved  invalid,  and  that  consequently  the  several  declarations 
of  trust  under  it  fail,  and  are  not  binding  on  Joseph  Simon  or  his 
representatives. 

2d.  That  they  are  not  jointly  liable,  there  being  no  evidence  of 
the  receipt  of  any  money  by  any  of  the  defendants,  except  Levi 
Philips.  And 

3d.  That  on  account  of  the  coverture  of  Leah  Phillips,  this  suit 
cannot  be  sustained  at  all. 


336  SUPREME  COURT  [Lancaster 

[Gratz  v.  Phillips.] 

An  additional  defence  as  to  part  of  the  plaintiffs'  claim  and  the 
right  to  a  set-off  arose  from  the  following  circumstances: 

Two  of  the  tracts  of  land  which  had  been  sold  by  the  defendants 
were  designated  as  being  in  the  names  of  William  Cox  and  Christian 
Dunegan,  and  which  the  defendants  say  were  the  private  property 
of  Joseph  Simon.  Another  tract  of  land,  in  the  name  of  William 
Trent,  which  had  been  sold  and  accounted  for  by  the  defendants  by 
mistake,  was  also  the  private  property  of  Joseph  Simon,  and  that 
for  the  amount  for  which  they  had  accounted  they  were  entitled  to 
a  set-off. 

The  claim  to  these  lands  arose  in  the  following  manner : 

On  the  12th  January  1764,  Andrew,  William  and  John  Foster 
conveyed,  by  three  separate  deeds,  eighteen  hundred  acres,  includ- 
ing the  tracts  in  question,  to  John  Proctor,  who  on  the  same  day 
conveyed  to  William  Trent  and  Joseph  Spear.  It  seemed  that 
Coxe  and  Peters  were  in  partnership  with  Trent  as  to  his  part. 
Spear  conveyed,  22d  June  1764,  his  half  to  Trent,  and  on  the  28th 
February  1769  Trent  conveyed  his  interest  under  Spear's  deed  to 
Joseph  Simon. 

Afterwards,  on  the  8th  April  1769,  a  partition  of  these  lands 
was  made,  when  the  William  Coxe  and  Christian  Dunegan  tracts 
were  allotted  to  Trent.  These  lands  were  what  are  called  the 
"Proctor  lands,"  and  much  evidence  was  given  by  the  defendants 
to  prove  that  Simon,  during  his  life  and  up  to  the  time  of  his  death, 
supposed  they  were  his  "  George's  Valley  lands,"  and  his  own  pri- 
vate property,  and  some  evidence  that  Mr.  Gratz  treated  those 
lands  (George's  Valley)  as  the  private  property  of  Mr.  Simon,  con- 
trary to  his  knowledge  of  the  fact. 

Defendants  offered  in  evidence  the  record  of  an  action  of 
account-render,  Michael  Gratz  v.  The  present  defendants,  execu- 
tors of  Joseph  Simon,  in  Philadelphia,  to  July  term  1807,  to  show 
that  if  the  mistakes  about  what  were  the  "Proctor  lands"  and 
"Georges  Valley  lands"  were  mutual,  the  plaintiffs  have  not 
abided  by  it,  but  have  recovered  a  large  portion  of  the  proceeds  of 
the  "George's  Valley  lands,"  and  therefore  Joseph  Simon  is  not 
bound  by  acts  done  in  pursuance  of  it. 

This  evidence,  together  with  part  of  the  deposition  of  Zalegman 
Phillips  to  prove  the  same  thing,  were  objected  to  by  the  plaintiffs, 
and  rejected  by  the  court. 

The  plaintiffs,  for  the  purpose  of  showing  that  the  deed  of  28th 
February  1769,  Trent  to  Simon,  was  not  an  absolute  conveyance, 
offered  a  defeasance  of  the  same  date,  executed  by  Levy  Andrew 
Levy,  attorney  of  Joseph  Simon,  to  William  Trent,  together  with 
the  deposition  of  Levy  Andrew  Levy,  taken  on  a  commission  to 
Baltimore,  in  the  action  of  account-render  of  Gratz  v.  Simon's 
executors,  by  which  some  evidence  is  given  of  his  own  authority  to 
execute  the  defeasance  as  the  attorney  of  Joseph  Simon. 


May  1830.]  OF  PENNSYLVANIA.  337 

[Gratz  v.  Phillips.] 

This  evidence  was  all  objected  to,  and  the  objections  overruled 
by  the  court. 

Much  other  evidence,  having  some  relation  to  the  different  fea- 
tures of  the  case,  was  given  on  one  side  and  the  other,  but  which  it 
is  not  material  to  state  here. 

The  counsel  for  the  plaintiffs  requested  the  court  to  charge  the 
jury  upon  the  following  points : 

1.  That  as  it  is  expressly  stipulated   by  the  agreement  under 
which   this  suit  was  entered  in  the  Common  Pleas  of  Lancaster 
county,  to  January  term  1822,  No.  162,  that  "no  advantage  be 
taken  as  to  the  form  of  suit,  or  the  liability  of  parties  in  it,"  it 
is  not  competent  for  the  defendants  now  to  resist  a  recovery  on 
behalf  of  the  plaintiffs,  on  the  ground  that  the  action  is  miscon- 
ceived in  point  of  form,  or  that  the  defendants  are  not  jointly  liable 
as  trustees  of  plaintiffs,  under  the  evidence  given  in  the  cause. 

2.  That  purchasers  for  a  valuable  consideration,  bona  fide,  and 
without  notice  of  any  claim  upon  the  estate,  are  entitled  to  the 
peculiar  favor  and  protection  of  courts  of  justice  ;    and  as  Michael 
Gratz,  the  plaintiff's  intestate,  purchased  from  Joseph  Simon  for  a 
full  and  valuable  consideration,  a  moiety  of  the  lands  sold  to  Joseph 
Simon  by  the  sheriff  of  Northumberland,  without  notice  at  the  time 
of  the  purchase  of  any  title  or  claim  to  the  lands  by  Joseph  Simon, 
or  any  other  person  adverse  to  the  title  acquired  by  Joseph  Simon 
under  the  sheriff's  sale,  and  constituted  him,  Joseph  Simon,  his 
trustee,  to  sell  the  lands  thus  purchased,  it  is  not  competent  for  the 
representatives  of  Joseph  Simon  now  to  resist  the  recovery  of  the 
plaintiffs  for  their  half  part  of  the  proceeds  of  the  lands  sold  on 
the  ground  of  an  outstanding  title  in  favor  of  third  persons. 

3.  That  a  trustee  cannot  dispute  the  title  of  his  cestui  que  trust, 
and  therefore  the  defendants,  the  representatives  of  Joseph  Simon, 
cannot  resist  the  title  and  right  of  the  plaintiffs  to  recover  in  this 
suit.     They  are  estopped  by  the  several  deeds  given  in  evidence 
on  part  of  the  plaintiffs  from  alleging  that  no  title  was  acquired 
under  the  deeds  by  Michael  Gratz  for  all  the  lands  mentioned  in 
them. 

4.  That  from  the  lapse  of  time,  and  the  non-action  and  acqui- 
escence of  the  trustees,  the  jury  are  bound  to  presume  the  trust 
created  by  the  deed  of  the  20th  March  1786,  from  David  Franks 
to   Amos  Hayton's  assignee,  satisfied  and  extinguished,  and    that 
this  stale  and  abandoned  claim  can  form  no  bar  to  the  plaintiff's 
right  to  recover  in  this  suit. 

5.  That  if  the  jury  believe  that  in  August  1700,  when  Joseph 
Simon  purchased  at  the  sheViff 's  sale  and  sold  a  moiety  of  the  lands 
purchased  to  Michael  Gratz,  he,  Joseph  Simon,  had  and  possessed 
the  title  papers  to  the  tracts  of  Robert  Sample,  Thomas  Camelyne, 
Francis  Sylver,  Joseph  Sylver  and  Samuel  Sample,  called  now  the 
George's  Valley  lands,  he  did  kruo.w,  or  was  bound  to  know,  that 

1  P.  &  W.— 22 


338  SUPREME  COURT  [Lancaster 

[Gratz  c.  Phillips.] 

these  lands  were  acquired  under  the  deed  of  2Gth  April  1770,  from 
William  Trent,  in  favor  of  the  bond  and  mortgage  given  to  Franks 
and  Simon,  and  were  company  property,  and  were  not  his  own  pri- 
vate estate ;  and  that  the  impression  of  Joseph  Simon,  whensoever 
derived,  that  the  George's  Valley  lands  were  his  private  estate  can- 
not affect  Michael  Gratz,  who  was  a  bona  fide  purchaser,  on  the  2d 
August  1790,  of  the  tracts  of  land  now  claimed  by  the  representa- 
tives of  Joseph  Simon. 

6.  That  if  the  jury  believe  that  Joseph  Simon  made  the  declara- 
tions of  trust  of  2d  August  1790,  of  20th  July  1802,  the  compro- 
mise with  John  F.  Mifflin  of  30th  December  1802,  and  the 
declarations  of  trust  of  12th  January  1804,  with  the  circumvention 
or  fraud  of  Michael  Gratz,  or  of  any  person  acting  as  his  agent, 
practised  upon  him  in  order  to  procure  these  papers,  then  Joseph 
Simon  and  his  representatives  are  estopped,  in  conscience,  justice 
and  law,  from  denying  the  right  of  Michael  Gratz  and  his  repre- 
sentatives to  recover  the  half  of  the  net  proceeds  of  the  sale  of  the 
tracts  of  land  in  the  name  of  Coxe,  Dunegan  and  Trent,  even  if 
Joseph  Simon  himself  entertained  a  mistaken  impression  as  to 
what  were  his  George's  Valley  lands,  from  1790  till  his  death,  in 
1804. 

The  defendants  requested  the  court  to  charge  the  jury  as 
follows : 

1.  That  the  assignment  of  David  Franks  to  Bernard  and  Michael 
Gratz,  and  to  Michael  Gratz,  of  18th  May  1790,  under  which  plain- 
tiffs' claim,  is  invalid,  the  said  David  Franks  having,  by  a  previous 
assignment,  dated  20th   March  1780,  transferred  all  his  property 
real  and  personal ;  and  that  the  acceptance  of  the  order  and  the 
several  declarations  of  trust,  made  upon  the  faith  of  the  validity  of 
the  assignment  of  1790,  are  not  binding. 

2.  If  the  jury  believe  that  the  acceptance  of  the  order  and  the 
declarations  of  trust  were  made  by  Joseph  Simon,  under  the  belief 
that  the  tracts  called  the  George's  Valley  lands  were  his  private 
property,  and  if  it  were  well  known  to  Simon  Gratz,  the  agent  of 
Michael  Gratz,  that  such  MTfcrc  Mr.  Simon's  impressions,  the  con- 
cealment of  the  claim  upon  the  part  of  Michael  Gratz  and  his  agent 
is  a  fraud  which  will  vitiate  the  whole  transaction. 

3.  The  plaintiffs  cannot  recover  in  this  action  unless  they  prove 
a  receipt  of  money  by  the  defendants  jointly  ;  and  the  coverture  of 
Leah   Phillips,  one  of  the  defendants,  is  a  fatal  objection  to  plain- 
tiffs' recovery. 

4.  This  suit  should  have  been  instituted  against  the  defendants 
as  executors  of  Joseph  Simon,  deceased. 

5.  If  the  jury  believe   that  the  tract  in  the  name  of  William 
Coxe,  sold  to  John  Wicks,  and  the  one  in  the  name  of  Christian 
Dunegan,  sold  to  George  Knep,  called  the  Proctor  lands,  were  the 
private  property  of  Joseph  Simon,  the  defendants  are  not  liable  to 


May  1830.]  OF  PENNSYLVANIA.  339 

[Grata  »  Phillips.] 

account  for  them  ;  defendants,  for  the  same  reason,  would  be  entitled 
to  a  credit  or  set-off  for  the  amount  of  the  tract  in  the  name  uf 
William  Trent,  heretofore  accounted  for  by  mistake. 

A  verdict  was  rendered  for  the  whole  amount  of  the  plaintiffs' 
claim,  except  the  allowance  of  a  set-off  that  was  admitted,  and  a 
small  deduction  for  commissions.  A  motion  was  made  for  a  new 
trial  for  the  following  reasons  : 

1.  The  court  erred  in  not  admitting  in  evidence  the  exemplifi- 
cation of  the  record  of  the  action  of  account-render  between  the 
administrators  of  Michael  Gratz  and  the  executors  of  Joseph  Simon, 
brought  in  the  Supreme  Court  of  the  Eastern  District  of  Pennsyl- 
vania, to  July  term  1807. 

2.  The  court  erred  in  rejecting  part  of  the  deposition  of  Zaleg- 
man  Phillips,  a  witness  on  behalf  of  the  defendants. 

3.  The  court  erred  in  admitting  the  deposition  of  Levy  Andrew 
Levy,  taken  under  commission  in  the  action  of  account-render  in 
the  Supreme  Court  of  the  Eastern  District  of  Pennsylvania,  to 
July  term  1807,  No.  6,  the  record  of  which  suit  had  been  rejected 
as  above  stated. 

4.  The  court  should  have  charged  the  jury  that  the  agreement 
in  relation  to  the  liability  of  the  parties  extended  only  to  the  award 
and  proceedings  of  the  arbitrators,  and  that  it  had  no  connection 
with  the  agreement  to  enter  the  amicable  action,  the  agreement  to 
enter  the  action  and  that  to  refer  being  entirely  distinct. 

5.  Because  the  court  ought  to  have  charged  the  jury,  that  as 
there  was  no  evidence  of  the  receipt  of  any  money  arising  from  the 
Sales  of  lands  by  any  of  the  defendants  except  Levi  Phillips,  or  that 
the  others  were  jointly  responsible,  the  issue  was  not  supported, 
and  the  verdict  should  be  for  the  defendants. 

6.  Because  the  court  ought  to  have  directed  the  jury,  that  as  it 
was  in  evidence  that  Leah  Phillips  was  a  feme  covert,  the  action 
against  the  defendants  jointly,  for  sums  received  by  Levi  Phillips, 
could  not  be  legally  sustained. 

7.  Because  the  court  should  have  charged  the  jury,  that  the 
assignment  of  18th  May  1790,  from  David  Franks  to  Bernard  and 
Michael  Gratz,   and   Michael   Gratz  was  invalid,  and  that  conse- 
quently the  declaration  of  trust  of  2d  August  1790,  was  without 
consideration  and  of  no  validity,  and  that  the  declaration  of  2t>th 
July  1802,  and  of  12th  January  1804,  though  absolute  on  the  face 
of  them,  were  of  no  validity  if  the  assignment  of  18th  May  1790, 
was  invalid. 

8.  Because  the  court  should  have  charged  the  jury,  that  if  they 
believed,  that  at  the   time  Mr.  Simon   accepted  the*  order  on  the 
22d  May  1790,  he   was   ignorant  of  the   previous   assignment  of 
David  Franks  of  20th  March  1786,  and  that  Michael  Gratz,  or 
those    who   acted   for   him,  knew    it,  and  concealed  the  fact  from 
Joseph  Simon,  that  then  the  said  acceptance  of  22d  May  1790,  and 


340  SUPREME  COURT  [Lancaster 

[Gratz  v.  Phillips.] 

the  subsequent  declarations,    were  of  no   validity   to   entitle   the 
plaintiffs  to  recover. 

9.  The  court  should  have  instructed  the  jury,  that  if  they  be- 
lieved from  the  evidence,  that  Joseph  Simon  was  induced  to  accept 
the  indemnity,  and  make  his  declarations  of  trust  of  26th  July 
1802,  or  of  12th  January  1804,  by  any  representations  of  Simon 
Gratz,  contained  in  the  letter  of  23d  May  1802,  which  said  repre- 
sentations have  not  been  proved  nor  attempted  to  be  proved,  then 
said  declarations  are  to  be  considered  as  not  binding  or  affecting  the 
said  Joseph  Simon. 

10.  That  the  court  ought  to  have  left  it  to  the  jury  to  decide 
whether  the  acceptance  of  22d  May  1790,  or  any  of  the  declara- 
tions of  trust  subsequently  made  by -Joseph  Simon,  were,  under  the 
circumstances,  obtained  from  him  fraudulently  or  otherwise. 

11.  The  verdict  is  manifestly  wrong,  because  it  is  in  evidence, 
that  at  the  time  of  the  execution  of  the  several  declarations  of  trust, 
Mr.  Simon,  who  could  neither  read  nor  write,  "except  his  name," 
was  under  the  mistaken  impression  that  the  George's  Valley  lands 
were  his  private  property,  and  was  not  aware  that  the  Proctor  lands 
were  included  in  the  sheriff's  sale;  that,  therefore,  the  said  declara- 
tions were  void  in  relation  to  the  Proctor  lands,  viz. :  the  lands  in 
the  name  of  Coxe,  Dunegan  and  Trent. 

12.  Because  the  verdict  is  manifestly  wrong,  as  it  charges  the 
defendants  with  the  proceeds  of  the  tracts,  in  the  name  of  William 
Coxe  and  Christian  Dunegan,  which  tracts  were  the  private  pro- 
perty of  Joseph  Simon. 

13.  The  verdict  is  manifestly  wrong,  because  no  credit  is  given 
for  the  proceeds  of  the  tracts  in  the  name  of  William  Trent,  paid 
by  Joseph   Simon,  in  his  lifetime,  to  the  plaintiff's    intestate  by 
mistake,  and  to  which  the  said  plaintiffs  and  their  intestate  had  no 
claim. 

14.  Because  the  court  erred  in  charging  the  jury,  that  the  deed 
of  28th  February  1769,  from  William  Trent  to  Joseph  Simon,  for 
a  moiety  of  the  ten  tracts  derived  from  Proctor,  was  a  mortgage. 

15.  Because  the   court  erred   in   charging  the  jury,  that  if  the 
said  deed  was  a  mortgage,  the  private   debt  of  Joseph  Simon  was, 
from   the   length   of  time,  to   be   considered  as   satisfied,  and  that 
Joseph  Simon  had  no  title. 

16.  Because  the  court  ought  to  have  charged  the  jury,  that  if 
the  deed  of  28th   February  1769,   was  originally  a  mortgage,  the 
possession   of  the  title  papers  by  Joseph  Sirnon,  the  possession  and 
claim  of  ownership  over  the  George's  Valley  lands,  which  he  be- 
lieved to  be  the  Proctor  lands,  and  the  lapse  of  time,  were  circum- 
stances for  their  consideration,  from  which    they  might  infer  that 
the  paper  called  a  defeasance,  executed  by  Levy  Andrew  Levy,  on 
the  28th  February  1769,  had  been  surrendered  by  William  Trent 


May  1830.]  OF  PENNSYLVANIA.  341 

[Gratz  v.  Phillips.] 

to  Joseph  Simon,  if  it  ever  had  been  in  possession  of,  or  delivered 
to  said  Trent,  of  which  there  was  no  evidence. 

17.  The  verdict  is  manifestly  wrong,  because  the  jury  have  found 
the  full  amount  of  interest,  from  the  time   of  the   several   receipts 
of  money  claimed  by  plaintiffs,  although  there  is  no  evidence  of  any 
demand  for  any  sums  received  since  1806. 

18.  Because  the  court   did  riot  answer  the  second  point  of  the 
defendants. 

19.  The  court  should  have  submitted  to  the  jury,  as  being  their 
peculiar  province,  the  questions  of  fraud  or  mistake  raised  in  the 
points  submitted  by  the  court  by  defendants. 

The  motion  being  overruled  and  judgment  entered  on  the  verdict, 
the  defendants  appealed  to  this  court. 

Champneys,  for  appellants. — By  the  agreement  of  the  29th  Jan- 
uary 1822,  the  parties  had  in  view  a  reference  of  their  matters  in 
variance  to  an  amicable  tribunal,  arid  not  to  a  court  and  jury.  It 
is  admitted  that  neither  Leah  Phillips  nor  Beliah  Cohen  ever  received 
a  dollar  of  the  money  claimed  to  be  recovered  from  them  in  this 
suit;  and  there  was  no  other  consideration  for  their  entering  into 
the  agreement.  When  this  cause  was  formerly  before  this  court,  a 
construction  was  given  to  this  agreement  (Gratz  v.  Phillips,  14  S. 
&  R.  144,)  where  it  is  argued  by  the  plaintiff's  counsel  that  if  the 
case  should  be  remitted  to  the  Common  Pleas,  the  plaintiffs  would 
lose  the  advantage  of  one  part  of  the  agreement,  the  joint  liability 
of  the  defendants.  As  to  the  construction  of  the  agreement,  were 
cited,  Massey  v.  Thomas,  6  Binn.  333 ;  Pow.  on  Con.  147 ;  Mas- 
sina  v.  Hertzogg,  5  Binn.  388.  A  court  should  examine  with  as- 
tuteness an  agreement  which  creates  a  liability,  which  equity  would 
not  enforce. 

Leah  Phillips  was  a  feme  covert  when  she  signed  the  agreement, 
and  therefore  no  judgment  against  her,  predicated  upon  it,  can  be 
sustained:  2  Saund.  101,  note  a;  Sliver  v.  Shelback,  1  Dall. 
165;  Brown  v.  Caldwell,  10  S.  £  R.  114;  Stoolfoos  v.  Jenkins.  8 
Id.  177  ;  Grasser  v.  Eckert,  1  Binn.  586  ;  Stark.  Ev.  702,  note  /. 

If  Joseph  Simon  was  induced  to  make  the  declaration  of  trust  of 
the  2d  August  1790,  by  the  representations  of  Mr.  Gratz,  that  the 
assignment  to  Coxe  and  Hazelhurst  was  invalid,  such  declaration 
of  trust  would  not  be  binding :  Perkins  v.  Gay,  3  S.  £  R.  331 ; 
Levy  v.  Bank  of  United  States,  1  Binn.  27  :  1  Fonb.  106  ;  2  Pow. 
on  Con.  125.  But  at  all  events  the  court  should  have  submitted  it 
to  the  jury,  as  requested :  2  Stark.  Ev.  508  ;  Dornick  r.  Richen- 
back,  10  S.  &  R.  84  ;  Work  v.  Maclay,  2  Id.  415  ;  Jones  r.  Wildes, 
8  Id.  150. 

The  second  point  the  court  did  not  answer,  which  was  error : 
Powers  v.  McFerran,  2  S.  &  R.  44;  Pedan  r.  Hopkins,  13  Id. 
45. 


342  SUPREME  COURT 

[Gratz  v.  Phillips.] 

The  deed  of  28th  February  1769,  of  William  Trent  to  Joseph 
Simon,  for  the  moiety  of  ten  tracts  of  land,  was  absolute  upon  its 
face,  and  the  alleged  defeasance  of  Levy  Andrew  Levy,  attorney  for 
Joseph  Simon,  should  not  have  been  received  in  evidence,  for  the 
attorney  had  no  power  to  make  it ;  nor  did  his  deposition  establish 
the  fact  that  he  had  power ;  and  if  it  had,  it  should  not  have  been 
admitted  ;  for  an  attorney  in 'fact  is  not  competent  to  establish  his 
own  authority  :  Gordon  i>.  Bulkley,  14  S.  &  R.  331  ;  Nicholson  v. 
Mifflin.  '2  Dall.  240 ;  James  v.  Gordon,  1  Wash.  C.  C.  335 ;  Bel- 
las v.  Hays,  5  S.  &  R.  427  ;  Paley  on  Agency  133 ;  Wentz  v.  De- 
haven,  1  S.  &  R.  312. 

Joseph  Simon  always  considered  the  "  George's  Valley"  lands  as 
his  private  property  until  the  date  of  the  letter  of  Simon  Gratz  to 
Beliah  Cohen,  6th  March  104;  and  the  court  should  have  received 
in  evidence  the  deposition  of  Zaleginan  Phillips  to  prove  this  fact ; 
and  also  the  action  of  account  render,  to  show  the  time  of  the  dis- 
covery of  the  mistake,  and  that  the  plaintiffs  received  the  benefits 
of  it. 

The  court  erred  in  instructing  the  jury  to  allow  interest  upon 
the  money  from  the  time  it  was  received.  A  trustee  is  not  charge- 
able with  interest  from  the  receipt  of  the  money,  nor  until  demand 
made:  Knight  v.  Reese,  4  Dall.  182;  Brown  v.  Campbell,  1  S. 
&  R.  176.  These  moneys  were  not  demanded  before  suit  brought, 
for  the  letter  of  Simon  Gratz,  of  27th  October  180"),  demands  an 
account  of  the  "  George's  Valley"  lands  only.  A  demand  before 
the  money  is  received  is  an  illegal  demand,  and  will  not  alter  the 
rule  of  law  in  this  particular. 

Montgomery,  for  appellees. — When  the  judge  who  tries  a  cause 
in  the  Circuit  Court  is  satisfied  with  the  verdict,  it  must  be  a  strong 
case  of  injustice  if  this  court  will  grant  a  new  trial :  Cain  v.  Hen- 
derson, 2  Binn.  108;  Ludlow  v.  Union  Ins.  Co.,  2  S.  &  R.  119; 
Commonwealth  v.  Eberle,  2  Id.  9 ;  Com.  of  Berks  Co.  v.  Ross,  3 
Binn.  520;  Smith  et  al.  v.  Odlin,  4  Yeates  468;  Jordan  et  al.  v. 
Meredith,  3  Id.  318;  Campbell  v.  Sprout  et  al.,  1  Id.  327-363. 

As  to  the  defence  predicated  upon  the  assignment  to  Coxe  and 
Hazelhurst  the  answers  are  abundant  and  easy.  There  was  a  re- 
sulting trust  to  Franks  ;  and  it  behoved  the  defendants  to  show  that 
the  fund  was  insufficient  without  these  lands,  which  they  did  not 
do.  The  lapse  of  time  would  preclude  any  claim  upon  it.  But  in 
1703,  Coxe,  Ilazelhurst  and  Franks  assigned  to  Davis;  and  in  1806, 
Davis  assigned  to  Gratz,  by  which  the  subject-matter  of  this  defence 
was  absolutely  vested  in  the  plaintiffs  before  this  suit  brought;  and 
for  another  reason,  that  after  Simon  knew  all  about  this  assignment, 
he  made  two  other  unconditional  declarations  of  trust.  As  to  there 
being  fraud  in  Gratz  procuring  these  declarations,  the  idea  is  neg- 


May  1830.]  OF  PENNSYLVANIA.  343 

[Gratz  v.  Phillips.] 

atived  by  the  fact  that  he  afterwards  authorized  Simon  to  sell  the 
lands  and  account  to  him. 

The  deed  of  Trent  to  Sirnon  was  not  an  absolute  deed,  but  a 
mortgage ;  this  is  manifest  from  the  consideration  being  five  shil- 
lings, and  from  the  defeasance  bearing  the  same  date,  and  which 
is  sufficiently  proved  by  the  oath  of  Levy  Andrew  Levy,  that  he  had 
power  to  execute  it,  and  that  Simon  declared  it  was  a  mortgage, 
and  by  the  testimony  of  S.  Etting,  that  Levy  Andrew  Levy  was 
constantly  in  the  habit  of  writing  and  executing  papers  for  Simon, 
who  could  not  write  himself  more  than  his  name,  and  by  a  paper 
in  the  handwriting  of  William  Trent,  these  lands  are  enumerated 
as  his  unsold  land. 

But  suppose  they  were  his  private  property,  they  were  certainly 
sold  by  the  sheriff,  and  purchased  by  Simon  for  himself  and  Gratz, 
Simon  is  estopped  by  his  declarations  of  trust,  from  alleging  a 
defect  of  title  to  these  lands. 

The  action  of  account-render,  the  record  of  which  was  offered, 
was  brought  for  an  account  of  the  sale  of  the  five  tracts  of  "  George's 
Valley  lands ;"  it  was  therefore  irrelevant,  as  was  also  the  parol 
evidence  of  the  same  thing  as  contained  in  the  deposition  of  Zaleg- 
man  Phillips. 

By  the  declaration  of  trust,  Simon  reserved  to  himself  the  right 
to  sell  the  lands,  and  by  the  same  instrument  bound  himself  to 
account  for  the  proceeds  of  such  sales  when  received.  He  is  there- 
fore, by  his  contract,  bound  to  pay  interest  for  the  money  from  the 
time  it  came  to  his  hands,  or  those  of  his  personal  representa- 
tives. 

Leah  Phillips,  although  feme  covert,  is  bound  to  account.  Mr. 
Simon  could  not,  by  the  appointment  of  a  feme  covert  to  execute  his 
will,  sell  the  lands,  and  receive  the  money,  and  thereby  defeat  the 
claim  of  the  plaintiffs  against  his  estate,  or  against  his  representa- 
tives. A  feme  covert  may  be  an  executrix  with  the  consent  of  her 
husband:  Toll.  Law  of  Ex'rs,  31-241;  and  if  she  takes  letters,  she 
is  liable  to  all  the  incidents  of  an  executor :  Id.  357  ;  Wentworth 
207.  The  appointment  of  husband  and  wife  to  execute  a  will, 
makes  them  one  executor.  All  executors  must  be  sued :  Gordon 
290 ;  Wentworth  95 ;  Levinz  201.  A  married  woman  cannot 
administer  without  the  assent  of  her  husband,  and  the  administra- 
tion then  devolves  on  the  husband:  Gordon  154;  Ld.  Raym  360; 
Com.  Dig.,  title  Adm'n,  letter  D;  1  Salk.  300:'  Wentworth  109; 
4  Term  Rep.  616 ;  Win.  Black.  Rep.  801.  A  devastavit  will  bind 
both  husband  and  wife:  2  Swinburn  750.  If  the  husband  submits 
to  award  the  right  of  the  wife,  after  his  death  she  is  bound :  Kidd 
on  Awards  46. 

Norris*  on  the  same  side. — The  defendants  do  not  predicate  their 
defence  upon  merits  of  their  own.  They  do  not  contend  that  they 


344  SUPREME  COURT  [Lancaster 

[Gratz  v.  Phillips.] 

are  entitled  to  the  whole  proceeds  of  the  sales  of  the  land ;  but 
they  lay  hold  of  every  possible  claim  of  every  one,  even  remotely 
connected  with  the  transaction,  not  to  protect  themselves,  but  to 
injure  the  plaintiffs. 

Coxe  and  Hazelhurst  have  not  been  heard  of  since  1793 ;  they 
cannot  defend  for  them.  A  trust  untouched  for  twenty-four  years, 
is  extinguished  in  England  and  every  state  of  this  Union.  As 
between  the  trustor  and  trustee,  lapse  of  time  may  not  operate ; 
but  between  the  trustee  and  cestui  que  trust  or  the  creditors,  twenty 
years  is  a  flat  bar,  if  nothing  is  done  between  that  period.  As  to 
the  1800/.  to  secure  the  payment  of  which  the  trust  was  created, 
the  law  presumes  it  was  paid. 

Not  until  the  trial  of  this  cause  in  1822,  before  the  arbitrators, 
did  the  plaintiffs  ever  hear  of  the  claim  of  Joseph  Simon,  nor  that 
the  tracts  in  the  name  of  Coxe  and  Dunegan  were  his  private  pro- 
perty. 

The  antiquity  of  the  transaction,  by  which  Levy  Andrew  Levy 
declared  that  the  deed  of  the  28th  February  1769,  was  in  the 
nature  of  a  mortgage,  is  decisive,  when  taken  in  connection  with 
the  settled  law,  that  a  mortgage  may  be  discharged  by  parol,  be- 
cause it  is  a  mere  security  for  a  debt.  Why  take  a  mortgage  of 
the  same  date  on  the  Yandalia  estate,  to  secure  the  partnership- 
debt,  and  take  an  absolute  deed  in  consideration  of  5s.,  for  a  private 
debt? 

Michael  Gratz  was  entitled  to  the  one-half  of  the  proceeds  of  the 
sale  by  the  sheriff,  which  was  the  consideration  for  the  moiety  of 
the  ten  tracts  of  land. 

The  claim  of  Billington  gave  rise  to  the  repeated  declaration  of 
trust  of  1802 ;  and  that  of  Mifflin  to  the  again  repeated  declaration 
of  trust  of  1804. 

Trustees  are  liable  for  interest  in  some  cases  without  a  demand, 
and  in  others  not  until  a  demand  is  made.  Wherever  the  contract 
does  not  upon  the  face  of  it  require  a  demand,  interest  will  run 
from  the  receipt  of  the  money.  We  are  entitled  to  recover  it  in 
this  case,  because,  First:  The  contract  demands  it.  Second:  All 
our  letters  and  correspondence  in  1805,  contain  a  demand  of  it. 
Third  :  The  conduct  of  the  trustees  has  been  vexatious. 

Can  this  suit  be  supported  ?  Joseph  Simon,  by  his  will  in  1799, 
appoints  the  defendants  to  be  his  executors,  and  vests  in  them 
power  to  dispose  of  his  real  estate ;  they  thereby  become  nolens 
tWe?w,  as  to  Michael  Gratz,  his  trustees.  We  having  had  the  right 
and  remedy  against  Joseph  Simon  in  his  lifetime,  must  therefore, 
after  his  death,  have  the  same  right  and  remedy  against  his  execu- 
tors, who  voluntarily  take  upon  themselves  the  trust. 

A  feme  covert  may  take  an  estate  and  hold  it  even  in  trust,  when 
her  husband  does  not  dissent:  Com.  Dig.  98—110,  title  Baron 
and  Feme;  Coke  Lit.  3  a  and  356  6;  Doug.  452  ;  1  Roll.  Ab.  660. 


May  1830.]  OF  PENNSYLVANIA.  34.J 

[Gratz  v.  Phillips.] 

Upon  a  lease  to  husband  and  wife,  debt  for  rent  may  be  maintained 
against  both:  1  Roll.  Ab.  110;  2  Levinz  63.  The  wife  cannot  be 
culled  on  to  give  bail.  She  cannot  plead  separately.  The  bail  of  the 
husband  is  the  bail  of  his  wife  ;  so  of  his  plea.  Although  a  wife 
cannot  contract  for  herself,  yet  she  may  contract  in  trust  for  another, 
with  the  consent  of  her  husband.  In  Wilt  v.  Franklin,  1  Binn.  .002, 
the  assent  of  trustees  is  presumed.  Mrs.  Phillips  could  not  in  the  exe- 
cution of  this  trust,  make  a  contract  by  which  her  husband's  rights 
could  be  affected  ;  if  she  did  her  duty,  he  co.uld  not  be.  affected  in 
any  way.  She  is  not  here  sued  for  a  violation  of  a  contract  made 
by  her,  but  for  a  violation  of  her  duty  under  a  trust,  accepted  by 
the  consent  of  her  husband. 

Cohen,  in  reply. — It  is  one  of  the  first  principles  of  the  law  on 
this  subject  that  a  contract  entered  into  by  a  feme  covert  during 
coverture  is  void  ;  as  to  the  feme,  she  is  under  the  influence  of  her 
husband,  and  in  the  language  of  the  chief  justice,  in  Lancaster  v. 
Dolan,  1  Rawle  231,  "  the  law  will  not  permit  her  to  be  coaxed  or 
bullied  out  of  her  rights."  If  the  will  of  the  husband  can  make  his 
wife  a  party  defendant  to  an  action,  or  if  the  wife  can  agree  to 
become  a  party  thereto  and  be  bound  by  its  consequences,  every 
protection  which  the  principles  of  the  law  throw  around  a  feme 
covert  are  swept  away,  for  she  can  in  every  case  do  indirectly 
what  it  is  admitted  she  cannot  do  directly.  Cited,  Groh  v.  Eckert, 
1  Binn.  575. 

It  is  said  that  this  court,  in  the  exercise  of  its  equitable  powers, 
may  grant  relief.  But  what  grounds  are  there  for  equitable  relief 
here  against  Mrs.  Phillips,  who  it  is  not  pretended  ever  received 
one  dollar  of  the  money  for  which  this  suit  is  brought?  In  the 
case  of  Lang  v.  Keppele,  1  Binn.  123,  referred  to  by  the  appellees, 
there  was  a  distinct  ground  of  relief,  which  does  not  exist  here.  It 
would  be  monstrous  to  charge  the  separate  estate  of  Mrs.  Phillips, 
for  no  other  reason  than  that  she,  while  a  feme  covert,  entered  into 
an  agreement,  which,  if  she  had  been  a  feme  sole,  would  have  bound 
her.  It  is  always  for  the  protection  of  the  wife  that  the  law  permits 
her  to  be  joined  with  her  husband  as  a  defendant,  and  then  only 
when  in  a  fiduciary  character.  It  is  said  her  separate  estate  is  liable 
for  a  devastavit  committed  by  her.  This  is  only  true  in  the  case 
where  she  was  executrix  or  administratrix  before  marriage  :  (>ord. 
Law.  of  Dec.  266;  2  Brown  Chan.  323;  Toll.  Law  of  Ex.  3:>S-9, 
430  ;  1  Salk.  306.  This  distinction  is  reasonable,  for  a  feme  sole 
executrix  accepts  the  trust  voluntarily,  and  receives  the  advantages 
of  her  devastavit.  But  when  the  trust  is  cast  upon  her  during 
coverture,  she  can  only  accept  with,  and  cannot  refuse  to  accept 
without,  the  consent  of  her  husband :  and  whether  she  accepts  or 
refuses  the  trust,  it  is  for  his  benefit  or  advantage,  and  his  estate 
alone  should  be  liable  for  a  devastavit. 


346  SUPREME  COURT  [Lancaster 

[Gratz  v.  Phillips.] 

But  it  is  said  it  is  no  protection  to  one  sui  juris  that  he  is  joined 
with  one  incompetent  to  contract.  This  is  true  as  regards  con- 
tracts, but  not  true  as  to  proceedings  at  law. 

The  tracts  of  land  in  the  name  of  Coxe  and  Dunegan  were  de- 
rived from  Proctor,  and  Simon  always  claimed  them  as  his  own 
private  property,  supposing,  however,  that  they  were  the  "George's 
Valley  lands  ;"  this  mistake  he  might  readily  have  made,  for  he 
could  neither  read  nor  write.  That  he  did  thus  mistake  is  fully 
established  l»y  the  facts,  that  he  exercised  acts  of  ownership 
as  to  them';  he  leased  them;  he  mortgaged  them,  and  in  1802 
sold  them  to  Potter,  Morris  and  Craig.  In  his  books,  the  ex- 
penses of  the  "  George's  Valley  lands"  are  charged  to  his  private 
account. 

Gratz  knew  he  was  under  this  mistake,  for  in  a  letter  of  27th 
October  1^0/i,  to  Levi  Phillips,  he  says:  "I  always  did  consider 
the  '  George's  Valley  lands'  as  belonging  to  the  holders  of  Trent's 
bond  and  mortgage."  He  always  had  access  to  Simon's  papers, 
and  had  the  dt-ed  for  these  lands  in  his  possession.  It  is  not  until 
after  the  death  of  Simon  that  he  claimed  an  account  of  the 
"George's  Valley  lands,"  which  he  knew  Simon  had  always 
claimed  as  his  own  property.  On  this  part  of  the  case,  the  court 
took  the  facts  from  the  jury  by  saying,  "that  as  to  the  three  tracts 
the  defence  failed." 

If  the  deed  of  Trent  to  Simon,  of  the  28th  February  1769,  was 
originally  intended  as  a  mortgage,  it  subsequently  became  an  abso- 
lute deed  by  the  acts  and  consent  of  the  parties.  This  is  inferrible 
from, the  fact,  that  it  was  not  proceeded  upon  to  judgment;  that  it 
was  not  put  upon  record  until  1789 ;  and  the  defeasance  never  was 
recorded,  which  is  inconsistent  with  the  character  of  Simon  as  an 
honest  man,  unless  the  parties  had  previously  agreed  to  consider  it 
an  absolute  deed.  Simon  took  possession  of  the  "  George's  Valley 
lands,"  supposing  he  was  taking  the  "  Proctor  lands,"  under  this 
deed  to  Trent ;  the  mortgage  was,  therefore,  accompanied  by  pos- 
session for  more  than  twenty  years,  which  of  itself  makes  the  deed 
absolute.  The  other  points  in  the  case  are  fully  stated  in  the 
opening. 

The  opinion  of  the  court  was  delivered  by 

IlrsTox,  J. — I  shall  attempt  to  give  a  statement  of  this  case,  the 
facts  of  which,  in  the  order  in  which  they  were  submitted  in  the 
Circuit  Court  and  here,  it  was  not  easy  to  comprehend  at  first 
view. 

On  the  16th  May  1760,  a  partnership  as  merchants,  or  Indian 
traders,  was  entered  into  by  Joseph  Simon,  Levy  Andrew  Levy, 
David  Franks  and  William  Trent. 

About  1762—3,   the   Indians   plundered   their  storehouses,   and 


May  1830.]  OF  PENNSYLVANIA.  347 

[Gratz  v.  Phillips.] 

they  became  involved  in  debt  and  difficulties ;  and  then,  or  soon 
after,  the  partners  ceased  to  do  business  as  a  firm. 

On  the  4th  January  1769,  William  Trent  gave  a  bond  to  David 
Franks  and  Joseph  Simon  for  8164^.,  conditioned  to  pay  4082^., 
the  sum  due  them  on  settling  the  accounts.  How  Levy  Andrew 
Levy  got  out  of  the  firm,  or  settled,  does  not  appear. 

On  the  28th  February  1762,  William  Trent  gave  to  Franks  and 
Simon,  a  mortgage  on  seven  thousand  five  hundred  acres  of  land 
in  Cumberland  county  (this  is  the  only  description),  and  some  other 
imaginary  property,  to  secure  the  above  bonds,  and  the  debt  due 
on  them. 

William  Trent,  besides  the  above  debt,  to  the  creditor  partners 
of  the  company,  owed  a  private  account  to  Joseph  Simon,  to  secure 
which,  he,  on  the  same  4th  January  1761),  gave  to  Simon  his  bond 
for  885/.  14s.,  conditioned  to  pay  442£.  17s.  on  4th  January 
1770. 

Before  the  date  of  this  bond,  viz. :  12th  January  1764,  Andrevr 
Foster  had  conveyed  to  Captain  John  Proctor,  five  hundred  acres 
of  land  on  Mahony  creek,  John  Foster  had  conveyed  to  the  same 
three  hundred  acres,  and  William  Foster,  one  thousand  acres. 

On  the  same  day,  Proctor  conveyed  to  Trent  and  Joseph  Spear 
the  same  lands.  On  the  22d  June  1764,  Spear  conveyed  his 
moiety  to  Trent.  On  the  same  day  on  which  Trent  gave  the  above- 
mentioned  mortgage  to  Franks  and  Simon,  viz.,  28th  February 
1769,  they  conveyed  their  moiety  of  these  lands  got  from  Spear, 
to  Joseph  Simon.  The  conveyance  is  endorsed  on  the  back  of 
Spear's  deed.  The  lands  are  here  called  ten  tracts,  said  to  contain 
three  thousand  eight  hundred  and  fifty  acres ;  the  consideration  in 
the  deed,  5s.  The  other  moiety  belonged  to  Coxe  and  Peters. 

But  another  paper  was  given  in  evidence,  dated  4th  January 
1769,  and  signed  by  Joseph  Simon,  in  which  he  recites  a  debt  of 
885/.  14s.,  conditioned  to  pay  442/.  17s.,  which  would  be  due  in 
two  weeks.  That  indenture  witnessed,  that  on  the  said  William 
Trent  or  George  Croghan,  for  him,  making  over  to  said  Joseph 
Simon,  as  security  for  his  debt,  the  full  quantity  of  five  thousand 
acres  of  land,  out  of  a  tract  of  land  which  said  Trent  holds  in 
company  with  George  Croghan,  on  the  head  of  the  river  Delaware, 
in  the  county  of  Albany,  and  province  of  New  York,  and  the  said 
Croghan  engaging  to  have  it  effectually  transferred  to  said  Simon, 
as  security  tor  the  debt  aforesaid,  and  the  said  William  Trent, 
making  over  likewise,  a  quantity  of  land  purchased  by  John  Proctor 
(the  half  of  which  belonged  to  William  Coxe  and  Kit-hard  IVters), 
then  the  said  Joseph  Simon  doth  agree,  that  the  payment  of  the 
said  debt  be  deferred  for  one  year,  and  a  new  bond  taken  for  the 
same,  payable  in  one  year  from  that  date. 

And  further,  there  was  offered  and  received  in  evidence,  a  defea- 
sance to  the  deed  of  28th  February  1769,  dated  the  same  day,  and 


348  SUPREME  COURT  [Lancaster 

[Gratz  v.  Phillips.] 

signed  Levy  Andrew  Levy  for  Joseph  Simon  ;   this  made  the  deed 
of  the  same  date  a  mortgage  to  secure  the  debt  of  44 '21.  17s. 

This  made  it  proper  to  introduce  evidence  as  to  payment  of  the 
bond,  and  that  was  as  follows :  On  the  back  of  the  bond  was  en- 
dorsed a  receipt,  dated  2Sth  December  1781,  for  a  bond  for  345?. 
9«.  6c?.,  on  account  of  interest. 

A  bond,  dated  28th  December  1782,  from  Trent  to  Simon,  for 
790?.  17s.,  conditioned  for  the  payment  of  345?.  9«.  Gd. ;  and 
another  bond,  dated  20th  March  1784,  same  to  same,  for  190?. 
15«.  lit?.,  conditioned  for  the  payment  of  95?.  Is.  lit?.,  in  one 
year. 

Among  the  lands  which  came  through  Proctor,  were  three  tracts 
on  Middle  creek,  in  the  names  of  William  Coxe,  William  Trent 
and  Christian  Dunegan. 

This  part  of  the  case  must  be  kept  in  mind ;  for  the  greatest 
part  of  the  difficulty  and  dispute  in  this  cause  arose  from  a  real  or 
supposed  confusion  of  the  tracts  conveyed  to  Simon  alone  for  his 
own  debt,  with  other  lands  hereafter  to  be  mentioned,  which  were 
conveyed  to  him  by  Trent,  in  payment  of  the  debt  to  him  and 
Franks.  The  validity  of  the  defeasance,  and  the  authority  of  Levy 
Andrew  Levy  to  sign  it  for  Joseph  Simon,  was  also  contested. 

The  next  fact,  in  order  of  time  was,  that  on  the  4th  of  January 
1779,  William  Trent,  for  the  purpose  of  discharging  the  mortgage 
to  Franks  and  Simon,  conveyed  to  Simon  one  thousand  nine  hun- 
dred and  twelve  acres  of  land,  at  20s.  per  acre,  and  a  receipt  for 
912?.,  was  on  that  day  endorsed  on  the  bond. 

And  on  the  26th  April  1779,  he  also  conveyed  three  thousand 
five  hundred  and  sixteen  acres,  at  the  same  price  of  20s.  per  acre, 
to  Joseph  Simon,  for  the  same  purpose.  Among  the  tracts  (and 
the  respective  quantity  of  each  was  specified),  were  five  tracts  in 
George's  Valley.  It  may  be  noted  here,  that  on  the  face  of  the 
deed,  these  whole  three  thousand  five  hundred  and  sixteen  acres 
were  conveyed  expressly  on  account  of  the  partnership  debt,  and 
these  payments  deducted  from  the  principal  and  interest  of  the 
bond,  would  leave  about  33000  still  due. 

In  1780,  David  Franks  being  in  London,  and  indebted  to  one 
Amos  Hay  ton,  executed  a  deed  of  trust  to  Tench  Coxe  and  Isaac 
Hazel  hurst,  of  certain  specified  lands  (none  of  those  herein  before 
mentioned),  and  all  the  personal  estate  and  effects  of  said  David 
Franks,  in  North  America,  and  also,  all  debts  and  sums  of  money 
due  and  owing  to  said  Franks,  from  any  persons  in  America,  in 
trust,  to  pay  the  debt  to  Amos  1 1  ay  ton,  and  the  residue  to  Franks. 

On  the  18th  May  1790,  David  Franks  recites  the  bond  and 
mortgage  from  Trent,  to  himself  and  Simon,  and  in  consideration 
of  a  debt  due  to  Bernard  arid  Michael  Gratz  of  1968?.  2*.  2d.  and 
a  debt  to  Michael  Gratz  of  624?.,  he  assigns  to  them  all  his  interest 


May  1830.]  OF  PENNSYLVANIA.  340 

[Gratz  v.  Phillips.] 

in  said  bond  and  mortgage,  reserving  to  Joseph  Simon  his  expenses 
respecting  the  premises  over  and  above  lux  (Simon's)  one-half  of 
said  bond  and  mortyaije.  Arid  in  case  the  proceeds  of  the  said 
mortgage  should  exceed  his  debt  to  Gratz,  the  overplus  for  David 
Franks. 

Along  with  this  assignment,  and  of  the  same  date,  Franks  drew 
an  order  on  Joseph  Simon  to  pay  to  Bernard  and  Michael  Gratz 
one-half  part  of  what  should  be  received  on  the  bond  and  mortgage. 
This  was  presented  to  Joseph  Sirnon  and  by  him  accepted  on  22d 
May  1790.  Joseph  Simon  had  at  this  time  sued  out  a  levari  facias 
on  the  mortgage,  and  levied  it  on  fifteen  tracts  of  land  in  North- 
umberland county,  of  which  three  were  purchased  by  strangers,  ten 
by  Joseph  Simon,  and  two  in  the  name  of  Levi  Phillips,  but  treated 
by  Simon  as  his  own  ever  after. 

On  2d  August  1790,  there  is  a  declaration  of  trust  by  Joseph 
Simon  in  favor  of  Bernard  and  Michael  Gratz,  which  recites  the 
assignment  of  Franks  to  Gratz,  and  adds,  "  provided,  nevertheless, 
that  if  hereafter  the  said  assignment  should  prove  invalid,  then  this 
present  acknowledgment  shall  be  null  and  void."  This  declares 
Michael  Gratz  joint  owner  with  Simon  in  the  lands  purchased  and 
in  the  money  received  from  those  who  had  purchased  the  three 
tracts;  and  promised,  as  the  lands  should  be  sold,  to  pay  to  Michael 
Gratz  one  half  of  the  proceeds.  It  mentions  ten  tracts. 

20th  May  1802,  Levi  Phillips,  who  was  the  son-in-law  and  clerk 
of  Simon,  informs  Simon  Grata,  then  acting  for  his  father  Michael 
Gratz,  that  Thomas  Billington  was  claiming  under  the  assignment 
to  Hay  ton. 

23d  May,  Simon  Gratz  replies  he  had  long  known  of  that  claim, 
and  that  the  assignment  was  not  available,  &c.  On  the  2l>th  July 
1802,  Simon  Gratz,  as  attorney  for  Michael  Gratz.  gives  to  Joseph 
Simon  a  bond  of  indemnity  against  the  pretended  assignment  of 
David  Franks,  so  far  as  it  may  be  used  to  affect  the  rights  of  Simon 
to  the  mortgaged  lands.  Same  day  Levi  Phillips,  for  Joseph  Simon, 
and  in  his  presence,  gives  a  new  declaration  of  trust  to  Michael 
Gratz  for  the  lands  purchased  ;  and  promises  to  pay  over  half  of 
the  money  as  soon  as  it  is  received  from  the  sale  of  the  lands. 

On  the  12th  January  1804,  another  deed  of  trust  was  executed 
by  Joseph  Simon  like  the  last. 

John  F.  Mifllin  claimed  the  lands  bought  in  under  the  mortgage. 
and  brought  an  ejectment  for  them:  ami  on  30th  December  1802. 
Mifllin,  Simon  and  Gratz  made  an  agreement  by  which  Mifllin  got 
three  of  the  tracts  bought  bv  Simon  and  one  bought  bv  Phillips. 
Simon  and  Gratz  got  the  remaining  eight  tracts  and  one-half  of 
seventeen  tracts  which  Mifllin  claimed,  and  which  they  claimed 
under  the  mortgage  for  seven  thousand  five  hundred  acres. 

24th  January  1804,  Joseph   Simon  died,  having  first   made  his 


350  SUPREME  COURT  [Lancaster 

[Gratz  r.  Phillips.] 

last  will  and  testament,  by  which  he  appointed  the  defendants  to  be 
his  executors. 

I  now  £0  back  to  Franks'  assignment  to  Hayton.  On  the  16th 
May  1708,  Tench  Coxe  and  Isaac  llazlehurst  and  David  Franks 
made  an  assignment  to  George  Davis. 

On  the  li4th  July  180(3,  George  Davis  assigned  to  Simon  Gratz. 
This  suit  was  brought  to  recover  one-half  of  the  money  actually 
received  since  the  death  of  Joseph  Simon  from  the  sales  of  the  eight 
tracts  contained  in  the  sheriff's  deed  to  Simon,  and  the  declarations 
of  trust  and  not  ceded  to  Mifflin,  and  one-fourth  of  the  purchase- 
money  received  by  defendants  from  the  sale  of  the  seventeen  tracts, 
of  which  Mifflin  was  half  owner,  and  Simon  and  Gratz  were  joint 
owners  of  the  other  half. 

Of  the  preceding,  the  defendants  gave  in  evidence  all  that  related 
to  the  private  debt  from  Trent  to  Franks.  All  the  deeds  from  the 
Fosters  to  Proctor,  from  Proctor  to  Spear  and  Trent,  and  Trent  to 
Simon. 

A  partition  was  made  between  Trent,  Coxe  and  Peters  on  the 
8th  April  1769,  by  which  the  tracts  in  the  names  of  William  Trent, 
William  Coxe  and  Christian  Dunegan  fell  to  Trent;  and  as  defend- 
ant alleged,  thus  became  the  exclusive  property  of  Joseph  Simon. 
They  showed  that  in  the  adjustment  with  Mifflin  the  tract  in  the 
name  of  William  Trent  was  allotted  to  Mifflin,  and  the  other  two, 
Coxe's  and  Dunegan's,  had  been  sold  by  defendants  ;  and  although 
these  three  tracts  had  been  levied  on  as  Trent's  by  the  sheriff  of 
Northumberland,  and  sold  as  forming  part  of  the  seven  thousand 
five  hundred  acres,  and  bought  by  Simon,  and  a  trust  as  to  half  of 
them  declared  for  Gratz,  yet  they  alleged  all  this  was  a  mistake. 
They  proved  that  Joseph  Simon  could  not  read  nor  write,  except 
his  name.  They  also  gave  evidence  to  show  that  Joseph  Simon, 
through  his  whole  life  (under  a  mistake  to  be  sure),  considered  the 
George's  Valley  lands  as  those  called  the  Proctor  lands.  That  the 
expenses,  taxes,  &c.,  of  the  other  lands  were  charged  in  his  books, 
one-half  to  David  Franks,  "while  he  was  owner,  and  after  the  assign- 
ment by  Franks  to  Gratz  were  charged  to  Gratz,  while  in  his  books 
all  charges  arising  on  the  George's  Valley  lands  were  made  as 
arising  from  Jiix  own  land,  and  that  many  of  these  entries  were 
made  by  Simon  Gratz.  who  lived  with  Joseph  Simon,  his  grand- 
father. They  showed  that  he  leased  them,  mortgaged  them  as  his 
own  on  the  -Nth  June  171*0,  and  afterwards  discharged  the  mort- 
gage; that  Simon  Gratz  witnessed  an  agreement  for  the  sale  of  one 
of  them,  and  knew  the  whole  transaction,  and  the  mistake,  as 
appeared  by  his  letter  to  one  of  the  defendants,  soon  after  the  death 
of  Joseph  Simon. 

The  defendants  also  gave  in  evidence  the  assignment  of  Franks 
to  Coxe  and  Hazelhurst  in  17H6,  the  subsequent  assignment  of 


May  1830.]  OF  PENNSYLVANIA.  351 

[Gratz  v.  Phillips.] 

Franks,  Coxc  and  Ilazelhurst  to  Davis  in  1793,  and  that  of  Davis 
to  Simon  Gratz  in  1806. 

The  defendants  then  offered  in  evidence  an  action  of  account- 
render,  No.  6,  of  July  Term  1807,  Michael  Gratz  against  the  present 
defendants,  as  executors  of  Joseph  Simon,  deceased,  which  as 
amended  stands,  Michael  Gratz,  surviving  partner,  and  who  had 
been  jointly  interested  with  Bernard  Gratz,  deceased,  to  show  that 
if  the  mistakes  were  mutual,  and  both  parties  acted  on  the  suppo- 
sition that  the  "George's  Valley  lands"  were  the  "Proctor  lands," 
that  the  plaintiffs  have  not  acted  as  partners  under  the  deeds  of 
trust  of  1790,  1802  and  1804,  by  Simon  to  Michael  Gratz,  hut 
had  recovered  the  eleven-twelfths  of  the  price  for  which  Simon  sold 
them  ;  and  that  so  far  he  had  rendered  Franks's  assignment  to 
Gratz  invalid,  and  therefore  the  deed  of  trust  became  null  and  void. 
Arid  they  further  offered  the  deposition  of  Zaleginan  Phillips,  coun- 
sel in  that  cause,  to  prove  what  was  then  claimed  by  the  plaintiffs, 
and  other  matters.  The  court  rejected  the  record,  and  that  part  of 
the  deposition  which  related  to  what  was  claimed  and  proved  in  that 
cause. 

To  understand  this  it  is  necessary  to  examine  for  what  the  for- 
mer suit  was  brought,  and  by  whom  and  against  whom.  When 
Joseph  Simon,  in  January  1779,  took  nineteen  hundred  and  twelve 
acres  of  land,  for  1912Z.,  and  in  April  three  thousand  five  hundred 
and  sixteen  acres,  for  3516^.,  in  payment  of  the  mortgage,  he  held 
those  lands  by  previous  or  subsequent  agreement,  in  trust  for  him- 
self and  David  Franks,  and  after  the  assignment  by  Franks  to  Ber- 
nard and  Michael  Gratz,  in  trust  for  himself  and  the  Messrs.  Gratz, 
as  is  alleged  and  shown  by  both  parties.  He  sold  certain  of  those 
lands,  particularly  the  five  tracts  in  George's  Valley  and  two  others, 
in  his  lifetime,  and  received  the  purchase-money. 

In  the  account-render  suit  offered  in  evidence,  Michael  Gratz,  in 
his  own  right  (for  he  had  a  separate  bond  of  his  own  secured  by  the 
assignment),  and  as  surviving  partner  of  Bernard  Gratz,  sued  for 
an  account  of  those  specified  lands,  stating  and  describing  them  ; 
and  that  they  were  held  in  partnership  by  Joseph  Simon  and  Ber- 
nard and  Michael  Gratz.  The  account  made  out  by  the  auditors, 
states  each  tract,  and  the  price  at  which  it  sold  :  but  strange  as 
it  may  seem  they  give  to  Joseph  Simon  one-twelfth  part  only,  and 
the  other  eleven  parts  to  the  plaintiff.  The  exceptions  to  the  report 
not  being  filed  in  time  it  was  confirmed  :  3  Binn.  474.  It  appears 
by  the  admissions  and  proof  in  this  cause,  that  there  the  plain- 
tiffs declared  on  one  contract  and  recovered  on  a  different,  and  even 
an  inconsistent  one.  Bernard  Gratz  never  had  any  interest  in  the 
Hayton  deed;  it  was  purchased  by  Michael  Gratz,  after  Bernard's 
death,  which  appears  in  that  record  to  have  been  in  1804.  Besides, 
under  the  evidence  given  in  this  cause,  that  Joseph  Simon  applied 
to  Gratz  respecting  this  claim,  and  was  told  it  was  worthless,  it 


352  SUPREME  COURT  [Lancaster 

[Grntz  r.  Phillips.] 

could  not  be  that  tlic  partner  who  thus  informed  him,  should  after- 
wards purchase  it  for  a  mere  trifle,  and  use  it  to  its  full  amount 
against  his  partner,  at  least  not  as  to  partnership  property  :  5  Johns. 
Ch.  407.  Add  to  this  the  bond  of  indemnity  given  by  Gratz  to 
Simon,  that  it  should  not  affect  the  partnership  claim  under  the 
mortgage ;  which  I  would  consider  a  covenant  that  it  should  not. 
It  presents  a  case  to  my  mind,  without  the  least  shadow  of  doubt, 
hut  we  cannot  reverse  or  affect  that  judgment :  nor  can  we,  as  is 
nsked.  give  credit  in  this  suit,  although  it  is  an  equitable  action,  for 
what  Michael  Gratz  recovered  there  beyond  his  share  ;  because  that 
would  in  effect  be  reversing  that  judgment;  and  because  this  suit 
is  between  different  parties,  and  to  settle  the  accounts  of  a  different 
partnership.  When  in  1790,  Joseph  Simon  and  Michael  Gratz 
purchased  the  lands  at  sheriff's  sale,  the  purchase-money  belonged 
to  Joseph  Simon,  Bernard  and  Michael  Gratz.  The  lands  pur- 
chased belonged  to  Joseph  Simon  and  Michael  Gratz,  and  they  held 
them,  not  under  the  mortgage  and  old  partnership  which  were 
ended  by  the  sale,  but  under  the  sheriff's  deed  and  the  contract,  of 
which  the  several  deeds  of  trust  of  1790,  1802  and  1804,  are  the 
evidence. 

This  suit  is  not  against  the  estate  of  Joseph  Simon,  but  against 
the  defendants  as  trustees  of  moneys  received  by  them  in  that 
capacity,  and  not  for  anything  received  by  Joseph  Simon,  in  his 
lifetime.  Whatever  remedy  then  (if  there  is  any)  the  estate  of 
Joseph  Simon  may  have  against  the  plaintiffs,  on  account  of  the  for- 
mer agreements  and  proceedings  on  them,  it  must  be  in  some  other 
action ;  for  this  purpose  that  record  was  not  evidence  in  this  case. 
But  it  was  offered  in  another  view,  to  show  that  there  was  a  former 
suit,  and  that  in  that  suit  the  plaintiffs  in  this  cause  alleged  and 
showed  that  Joseph  Simon,  during  all  the  latter  part  of  his  life, 
was  impressed  with  the  belief  that  the  "George's  Valley  lands" 
were  the  "  Proctor  lands,"  and  his  individual  property  ;  that  the 
plaintiff  then  proved  this  to  be  a  mistake,  and  that  the  tracts  in  the 
names  of  William  Coxe,  William  Trent  and  Christian  Dunegan, 
were  really  the  "Proctor  lands,"  and  that  the  plaintiff  then  reco- 
vered on  this  proof.  And  they  contended  that  if  the  plaintiffs  then 
recovered  the  price  of  the  "  George's  Valley  lands,"  on  proving  the 
mistake,  defendants  here  ought  to  be  discharged  from  accounting 
for  the  price  of  the  William  Coxe  and  Christian  Dunegan  tracts. 
The  plaintiffs  reply,  that  by  levying  on,  and  selling  those  tracts,  as 
included  in  the  mortgage,  and  executing  the  several  deeds  of  trust, 
the  defendants  arc  estopped  from  setting  up  any  other  title.  I  do 
not  think  the  last  deeds  of  trust  make  the  matter  any  stronger  than 
if  it  had  been  left  on  the  first,  under  the  circumstances  of  this  case. 
And  as  the  plaintiffs  themselves  prove  the  mistake,  and  recovered, 
I  think  the  defendants  ought  to  be  permitted  to  show  this,  and  to 
show  also,  the  real  state  of  facts  ;  and  unless  some  cause  is  shown 


May  1830.]  OF  PENNSYLVANIA.  353 

[Gratz  ».  Phillips.] 

why  it  should  be  so,  I  do  not  see  why  the  same  party  shall  correct 
the  mistake  when  he  gains  by  it,  and  hold  the  other  party  to  it, 
when  he  would  gain  by  holding  him  to  it.  I  am  not  to  be  under- 
stood as  giving  an  opinion  of  what  ought  to  be  the  final  decision  on 
this  point;  that  must  depend  on  all  the  evidence;  I  only  say  the 
evidence  ought  to  be  admitted  as  important  in  the  decision. 

But  it  is  said  next,  that  the  deed  from  Trent  to  Simon  for  the 
"Proctor  lands"  was  only  a  mortgage,  and  that  the  mortgage  is  to 
be  presumed  paid  from  lapse  of  time.  Of  this  last  I  doubt,  under 
the  circumstances  of  the  poverty  of  Trent  till  his  death,  and  other 
matters  in  this  cause.  Presumption  met  by  presumption  is  for  the 
jury.  In  deciding  whether  this  was  a  mortgage,  the  deed  or 
writing  of  defeasance,  signed  by  Levy  Andrew  Levy  for  Joseph 
Simon,  is  of  primary  importance,  although  not  under  seal,  yet  it 
operates  to  destroy  a  deed  under  seal,  and  to  take  away  the  title  to 
lands.  It  affects  not  the  property  of  the  firm  of  which  Levy 
Andrew  Levy  was  a  partner,  but  the  private  estate  of  Joseph 
Simon.  I  think  it  much  stronger  than  the  case  of  Shaub  and 
Withers,  decided*  this  term.  I  did  not  agree  to  that  case,  but  I  am 
bound  by  it.  But  by  the  evidence  he  had  no  authority  ;  he  says, 
"  I  never  executed  any  other  deed  of  defeasance  than  the  one  in 
question.  I  frequently  wrote  letters,  signed  receipts  and  other 
papers  of  consequence  for  him,  by  which  he  at  all  times  considered 
himself  bound.  I  kept  all  his  books  of  accounts,  for  upwards  of 
thirty  years;  never  had  a  written  power  of  attorney."  Now  to  me 
this  presents  the  idea  of  a  clerk  in  a  store  or  acting  partner,  and 
not  an  attorney  in  law  or  fact  as  to  lands.  He  does  not  say  any 
of  those  important  papers  related  to  lands,  or  that  he  had  authority 
to  execute  this,  or  that  Joseph  Simon  knew  of  it.  And  the  testi- 
mony of  S.  Etting  goes  no  farther.  We  think  this  paper  ought 
not  to  have  been  received.  But  what  difference  can  it  make  in  this 
cause,  if  it  is  once  found  by  a  jury,  that  the  whole  proceeding  as  to 
the  tracts  Coxe  and  Dunegan  is  a  mistake  and  error,  whether  they 
belonged  to  Joseph  Simon  exclusively,  or  to  William  Trent's  heirs, 
and  Simon  was  only  mortgagee?  In  either  case  the  plaintiffs  have 
no  claim  to  them.  And  if  the  plaintiff's  right  to  them  fails,  it 
would  be  improper  in  us  to  decide  between  Simon's  heirs  and 
Trent's  heirs  ;  the  latter  are  not  before  us. 

I  am  of  opinion  then,  that  the  record  of  the  action  of  account- 
render  was  admissible,  not  for  the  purpose  of  revising,  correcting, 
or  in  way  affecting  that  judgment,  but  to  show  there  was  a  former 
suit,  and  to  let  in  proof,  if  such  there  be,  that  in  that  cause  the 
plaintiffs  proved  the  Coxe  and  Dunegan  tracts  to  be  the  "  Proctor 
lands,"  and  that  Joseph  Simon  was  mistaken  as  to  these  and 
"  George's  Valley  lands,"  as  being  material  evidence  in  deciding 
whether  the  plaintiffs  are  entitled  to  the  proceeds  of  those  two 

1  p.  £  W.— 23 


3.->4  SUPREME  COURT  [Lancaster 

[Gratz  v.  Phillips.] 

tracts.     By  the  bye.  it  seems  as  if  this  record  was  never  presented 
to  the  chief  justice  who  tried  the  cause  in  that  point  of  view. 

And,  I  am  also  of  opinion,  that  the  defeasance  signed  by  Levy 
Andrew  Levy  for  Joseph  Simon,  was  not  evidence. 

Mr.  Gratx  has  been  called  an  innocent  purchaser,  and  this  in- 
sisted on  ;  it  is  true  he  was  a  joint  purchaser  of  lands  sold  by  the 
sheriff  on  a  mortgage,  the  joint  property  of  Simon  and  Gratz, 
though  the  name  of  Gratz  was  not  in  the  mortgage.  Who  directed 
the  levy  does  not  appear ;  each  had  an  equal  right  to  do  it.  The 
purchase  was  a  mere  arrangement :  being  owners  of  the  mortgage, 
neither  paid  anything ;  it  extinguished  so  much  of  a  joint  debt. 
Neither  of  them  purchased  from  the  other  nor  paid  anything  to  the 
other.  There  is  nothing  in  the  case  to  show  that  Gratz  would  have 
agreed  to  receive  half  the  price  at  which  the  land  sold,  and  let 
Simon  keep  the  lands.  The  price  bid  for  the  whole  ten  tracts,  was 
only  1032?.  8s.  At  all  events,  the  mortgage  (though  I  by  no 
means  say  it  was  not  an  absolute  deed),  was  not  extinguished  by 
lapse  of  time  in  IT'JO.  Trent  had  been  paying  or  renewing  the 
securities  in  178o,  and  Simon  having  purchased  and  taken  posses- 
sion of  these  Coxe  and  Dunegan  tracts  and  no  claim  by  Trent  or 
his  heirs,  it  will  be  for  the  court  and  jury  to  say,  whether  his  claims 
can  now  be  opposed  to  that  of  Joseph  Simon,  and  if  not,  the  right 
to  the  price  of  these  two  tracts  must  depend  on  the  fact  of  complete 
mistake  in  Joseph  Simon  or  not. 

I  now  come  to  the  objections  to  the  action. 

There  has  been  a  prior  suit  between  the  parties,  but  in  which  the 
defendants  were  sued  as  executors  of  Joseph  Simon.  Wearied  with 
the  contest,  they  agreed  to  discontinue  that  suit,  and  entered  the 
present  amicable  suit.  It  contains  the  following  clause,  "  it  is 
agreed  that  the  arbitrators  shall  have  no  power  in  relation  to  any 
lands  unsold  at  the  time  of  instituting  this  suit;  and  that  no  advan- 
tage be  taken  by  either  party  as  to  the  form  of  the  suit,  or  the  lia- 
bility of  the  parties  in  it."  It  is  now  contended,  that  the  parties 
defendants,  being  trustees,  each  was  alone  liable  for  what  each 
received  ;  and  that  Leah  Phillips,  being  the  wife  of  Levi  Phillips, 
could  not  be  sued,  nor  could  anv  judgment  be  rendered  against  her. 
These  objections,  or  at  least  one  of  them,  was  before  the  court, 
and  decided:  14  S.  &  R.  144.  There  never  could  be  any  doubt 
about  it.  There  arc  often  difficulties  in  proving  which  of  two  trus- 
tees actually  receives  the  money;  and  the  circumstances  which  will 
excuse  or  make  liable  all  of  them.  They  may  waive  all  testimony 
on  this  point  and  agree  to  be  liable,  and  it  is  greatly  unreasonable, 
after  thus  putting  the  plaintiffs  at  ease  on  .this  point  to  move  for  a 
new  trial,  because  they  did  riot  prove  what  was  expressly  admitted. 
Defendants  were  all  executors  of  Joseph  Simon  and  trustees  of 
these  lands;  they  knew  their  own  situation,  and  how  the  money 


May  1830.]  OF  PENNSYLVANIA.  355 

[Gratz  v.  Phillips.] 

received  had  been  divided  among  them ;  they  have  put  it  out  of 
their  power  to  object  on  this  account  in  this  suit. 

But  another  objection  is  made,  that  Leah  Phillips  is  the  wife  of 
Levi  Phillips,  and  a  married  woman,  and  cannot  be  sued,  or  cannot 
enter  into  an  amicable  action.  A  number  of  cases  on  this  point 
•were  cited,  and  positions  laid  down,  which  were  contrary  to  common 
impressions  and  constant  practice. 

A  wife  may  be  sued,  together  with  a  husband,  for  a  debt  of  the 
wife  before  marriage,  and  judgment  rendered  against  both.  A  wife 
executrix,  whether  so  constituted  before  or  after  her  marriage,  may 
be  sued  with  the  other  executors,  nay  must  be  ;  or  if  sole  executrix, 
sued  with  her  husband ;  and  in  either  case,  after  judgment  against 
her  as  executrix,  may  have  a  devastavit  fixed  on  her  and  her  estate, 
and  her  personal  or  real  estate  sold  on  it. 

Her  husband  and  she  may  bring  an  ejectment  for  her  lands,  and 
two  verdicts  and  judgments  will  bind  and  bar  her  right  for  ever — so 
if  she  is  defendant.  Her  husband  and  she  may,  nay  her  husband 
alone,  may  have  partition  or  valuation,  under  our  intestate  acts ; 
and  her  husband  and  she  may  be  plaintiffs  or  defendants,  in  a  writ 
of  partition  at  common  law,  which  under  our  Acts  of  Assembly  may 
eventuate  in  a  sale  of  the  lands,  and  division  of  the  money.  In  all 
these  cases  the  husband  can  appoint  an  attorney  at  law  for  himself 
and  wife,  and  she  is  bound,  both  during  his  life  and  after,  except 
perhaps  on  proving  actual  fraud.  A  husband  may  submit  to  arbi- 
tration out  of  court,  the  rights  of  his  wife,  either  as  an  individual 
or  as  executrix  or  administratrix,  and  she  is  bound. 

And  I  take  it  now,  in  this  state,  wherever  a  husband  and  wife 
can  sue  or  be  sued,  by  adversary  process,  an  amicable  action  can 
be  entered,  and  she  and  her  rights  are  as  much  bound  as  if  the  pro- 
ceeding had  been  adversary.  It  is  only  in  pals  that  her  rights  to 
land  are  not  affected,  except  by  a  separate  examination.  In  court 
no  such  thing  is  required.  The  affairs  of  this  world  require  that 
disputes  should  be  ended.  The  married  women  are  interested.  It 
is  not  true  in  fact  that  husbands  wish  to  destroy  the  property  or 
rights  of  their  wives ;  and  we  cannot  act  on  that  principle. 

In  chancery,  if  a  married  woman  is  a  trustee  alone,  or  jointly 
with  her  husband,  or  with  others,  she  must  be  brought  in  ;  and  as 
the  chancellor  decrees  against  each,  according  to  their  several  faults, 
the  decree  affects  her  and  her  estate,  or  not,  according  as  the  jus- 
tice of  the  case  requires. 

Cases  have  been  cited  making  a  difference  between  the  decisionj 
at  law  and  in  chancery,  as  to  a  husband's  liability  ;  and  between  his 
liability  where  he  marries  an  executrix,  and  where  she  becomes  so 
after  marriage. 

A  husband  who  marries  a  woman  is  liable  in  all  actions,  and  t« 
ajl  demands  during  coverture,  which  could  have  been  brough 


356  SUPREME  COURT  [Lancaster 

[Gratz  r.  Phillips.] 

against  her  if  sole ;  whether  they  are  against  her  as  an  individual 
or  executrix,  or  trustee.  If  she  was  executrix  before  marriage,  and 
she  is  not  sued  in  his  lifetime,  the  common  law  gave  no  remedy 
against  his  representatives ;  for  there  must  be  first  a  suit  against 
the  executrix  and  judgment  de  bonis  testatoris,  before  she  would 
be  fixed  for  a  devastavit,  and  his  representatives  could  not  be  sued 
as  representatives  of  the  testator.  In  such  case,  on  a  bill  in  equity, 
they  did  not  hold  his  representatives  liable  in  every  case.  If  the 
goods  were  wasted  before  he  married  the  executrix,  his  estate  was 
not  liable.  If  the  devastavit  was  after  marriage  (as  it  must  be  if 
she  was  made  executrix  after,  or  might  be  if  she  had  the  goods  when 
he  married  her),  his  estate  was  liable.  For  the  law  in  such  case 
gave  him  the  control  and  management  of  them.  And  this  is  the 
real  and  substantial  distinction,  and  the  dicta  in  3  Brown's  Ch.  323, 
are  mistakes  of  the  reporter. 

The  law  was  thus  perfectly  settled  before  1776,  and  so  settled 
since  the  case  in  3  Brown,  and  as  Brown  is  cited  by  every  modern 
writer  who  turns  compiler,  and  so  is  read,  I  refer  to  Adair  v.  Shaw, 
1  Shoales  &  Le  Froy  248,  where  all  the  old  cases  are  collected, 
and  the  above  conclusion  drawn. 

If  the  goods  were  left  in  specie  at  the  death  of  the  husband,  his 
representatives  were  not  liable  ;  if  laid  out  in  lands  or  goods  and 
left  to  the  wife,  she  must  answer  for  them,  and  if  she  was  executrix 
and  the  goods  were  given  away  or  released,  and  no  benefit  to  him 
or  her,  his  estate  was  liable  in  the  first  instance,  ajul  then  hers,  if 
she  had  any. 

The  fiction  of  law  that  a  wife  has  no  understanding,  and  can  do 
no  wrong,  has  but  a  limited  existence  in  chancery,  where  the  mat- 
ter is  considered,  more  according  to  the  fact  and  the  reality  of  the 
case.  In  this  country  a  married  woman  cannot  be  imprisoned : 
If  she  has  no  estate  of  her  own,  a  judgment  against  her  and  her  hus- 
band cannot  affect  her  more  than  a  judgment  against  him.  If  she 
has  an  estate,  and  has  acted  in  such  a  way  as  to  make  that  estate, 
liable  by  adversary  suit,  in  which  her  husband  must  and  could  em- 
ploy counsel  for  her,  the  same  result  may  be  produced  by  an  amica- 
ble suit.  This  is  not  an  application  by  her,  to  be  relieved  from  a 
suit  fraudulently  entered  by  her  husband  in  her  name.  The  same 
counsel  who  signed  the  agreement  for  an  amicable  suit  make  the 
motion. 

Where  one  objection  has  been  made  as  to  form  of  action,  it  must 
be  a  very  uncommon  case  in  which  I  would  listen  to  another,  on  a 
ground  which  existed  before  the  time  of  the  former. 

GIBSON,  C.  J. — I  join  in  granting  a  new  trial,  but  for  a  reason 
common  only  to  my  brother  Smith  and  myself;  so  that  the  judg- 
ment on  this  point,  although  conclusive  between  the  parties,  will 


May  1830.]  OF  PENNSYLVANIA.  357 

[Gratz  v.  Phillips.] 

not  be  a  precedent  for  future  cases.  The  action  is  against  the 
defendants  in  their  own  right ;  and  being  for  what  was  not  a  debt 
of  the  decedent,  it  could  be  brought  against  them  in  no  other  way. 
But  a  feme  covert  who,  as  such,  can  do  no  act  nor  incur  any 
responsibility,  can  make  no  contract  whatever.  In  actions  to  which 
she  was  liable  at  her  marriage,  arid  for  torts  and  trespasses  during 
the  coverture,  she  must  be  impleaded  jointly  with  her  husband,  but 
that  she  cannot  be  impleaded  on  a  contract  made  during  the  cover- 
ture, is  as  well  established  as  any  other  fundamental  principle  of 
the  common  law:  Palm.  -313;  Edwards  v.  Davis,  10  Johns.  281. 
Mr.  Phillips  would  be  exclusively  chargeable  for  the  receipts  of  his 
wife,  which  are  in  point  of  law  his  receipts,  even  though  the  money 
were  paid  into  her  hands  as  a  trustee.  It  is  on  this  principle  alone, 
that  a  husband  is  chargeable  for  goods  which  have  been  received 
through  the  hands  of  his  wife  to  his  use.  But  the  very  case 
occurred  in  Grasser  v.  Eckart,  1  Binn.  575,  where  the  wife  was 
not  allowed  to  be  charged  with  her  husband  for  money  jointly  had 
and  received.  If  that  case  is  to  go  for  anything,  it  negatives  the 
notion  of  a  special  usage  in  analogy  to  the  practice  of  courts  of 
chancery,  and  asserts  the  broad  principle  of  the  common  law. 
What  is  there,  then,  to  distinguish  it  from  the  case  at  bar  ?  With- 
out her  assent,  neither  her  husband  nor  her  attorney  could  subject 
Mrs.  Phillips  to  an  action  for  what  is  not  her  proper  debt.  But 
what  capacity  had  she  to  assent,  or  to  become  a  willing  party  to 
the  action,  if  she  had  no  capacity  to  assent  and  became  a  party  to 
the  cause  of  action  ?  A  joint  promissory  note  would  not  have 
bound  her.  But  if  she  may  become  a  party  to  the  action,  she  may 
doubtless  still  set  up  her  original  irresponsibility.  By  no  means. 
She  is  again  to  be  met  by  her  agreement  to  waive  objections  on 
that  and  every  other  ground.  The  matter  then  comes  to  this,  that 
although  she  is  disabled  by  the  common  law  from  binding  herself 
by  contract,  she  is  nevertheless  able  to  subject  herself  to  all  the 
consequences  of  a  contract,  by  volunteering  as  a  defendant,  and 
estopping  herself  by  an  agreement  from  asserting  the  original  dis- 
ability which  the  law  interposed  for  her  protection  ;  and  this,  not- 
withstanding that  such  an  agreement  whether  made  by  herself  or 
some  one  on  her  behalf,  is  as  much  a  contract  as  any  which  con- 
stitutes an  original  cause  of  action. 

As  regards  other  important  parts  of  the  case,  I  have  the  misfor- 
tune to  stand  alone.  Our  difference  of  opinion  in  respect  to  these, 
is  attributable,  it  seems  to  me,  to  that  comparative  disadvantage  in 
obtaining  a  precise  knowledge  of  the  circumstances,  which  is  always 
felt  in  a  greater  or  less  degree  bv  the  judges  who  have  not  tried 
the  cause,  and  particularly  a  cause  like  the  present,  the  trans- 
actors of  which  are  spread  over  a  period  of  more  than  half  a  cen- 
tury. The  paper-book  is  made  up  of  condensed  memoranda  of  the 


858  SUPREME  COURT  [Lancaster 

[Gratz  r.  Phillips.] 

evidence,  and  without  a  laborious  investigation  of  a  mass  of  docu- 
ments which  have  not  been  furnished,  it  is  unintelligible.  It  will 
therefore  be  necessary  for  me  to  develope  the  particular  points,  by 
separating  and  putting  aside  the  facts  and  circumstances  that  do 
not  immediately  belong  to  them. 

It  seems  to  be  agreed  that  the  record  of  the  action  of  account- 
render,  was  incompetent  evidence,  in  the  aspect  in  which  it  was 
presented.  But  as  it  is  intimated  that  it  may  be  competent  in 
some  other  aspect,  it  is 'necessary  to  consider  the  recovery  in  that 
action  in  all  its  bearings.  It  is  conceded  that  it  cannot  be  unra- 
velled here ;  but  an  intimation  is  given  that  it  may  have  been  a 
breach  of  the  covenant  of  indemnity,  the  fallacy  of  which  is  made 
apparent,  simply  by  an  exposition  of  the  facts. 

Before  his  assignment  to  the  Messrs.  Gratz,  Franks  had  as- 
signed his  whole  estate  to  trustees  for  payment  of  a  particular  debt; 
and  when  Mr.  Simon  executed  the  first  declaration  of  trust  in  favor 
of  Michael  Gratz,  it  was  on  condition  that  the  assignment  under 
which  the  latter  claimed,  should  not  prove  invalid.  Most  clearly 
the  purpose  of  this  condition  was  to  secure  Mr.  Simon  from  being 
compelled  to  pay  the  proceeds  of  the  lands  twice — to  Gratz  after 
having  paid  them  to  the  trustees.  The  aim  of  Mr.  Simon,  who  was 
a  stakeholder,  was  to  be  secure  in  paying  to  the  person  entitled,  all 
the  moneys  in  his  hands  as  the  estate  of  Franks — not  protection 
from  payment  of  a  farthing  which  was  not  his  own.  Such  was  the 
nature  of  this  condition,  which,  however,  is  no  further  important 
than  as  it  serves  to  explain  the  covenant  of  indemnity  which  super- 
sedes it.  After  a  recital  of  the  premises  of  that  covenant,  that  Gratz 
is  entitled  to  the  effects  in  the  hands  of  Mr.  Simon,  but  that  these 
were  claimed  under  the  previous  assignment  to  the  trustees,  and 
that  Mr.  Simon  was  unwilling  to  decide,"  follows  a  declaration  that 
Mr.  Simon  "is  willing  to  pay  all  the  moneys  and  to  assign  and  set 
over  all  the  effects  which  are  or  were  in  the  hands  of  the  said 
David  Franks,  in  his  lifetime,  or  at  the  present  time,  to  the  said 
Simon  Gratz  on  being  indemnified  or  kept  harmless  by  reason 
thereof."  Accordingly  Gratz  covenants  to  indemnify  him  against 
the  demand  of  the  trustees  "for  any  part  of  any  money  or  effects, 
or  other  property  belonging  to  the  estate  of  David  Franks  in  his 
(Simon's)  hands,  which  shall  be  paid,  secured  to  be  paid,  assigne  1 
or  set  over  to  the  said  Simon  Gratz,"  so  that  the  said  Joseph 
Simon  shall  not  now,  nor  at  any  time  hereafter,  come  to,  or  suffer 
any  loss,  damage,  expense  or  trouble  in  or  by  reason  of  the  prem- 
ises, or  touching  the  moneys,  effects  or  property  so  paid,  assigned 
or  set  over  to  the  said  Simon  Gratz."  Thus  the  covenant  is  not 
that  the  trustees,  or  any  one  in  their  stead,  may  not  recover  any 
part  of  the  estate  of  Franks,  but  only  such  part  as  shall  have  been 
paid  or  secured  to  be  paid  to  Simon  Gratz  as  the  agent  of  his  father, 


May  1830.]  OF  PENNSYLVANIA.  359 

[Grutz  v.  Phillips.] 

under  the  subsequent  assignment.  If,  then,  Simon  Gratz  has  riot 
recovered  on  the  title  of  the  trustees  anything  which  had  been  pre- 
viously paid  or  secured  to  be  paid  to  himself  or  his  father,  as  the 
representative  of  Bernard  and  Michael  Gratz,  he  has  broken  neither 
the  letter  nor  the  covenant,  which  forbids  no  assertion  of  the  right 
of  the  trustees  that  might  not  involve  Mr.  Simon  in  the  conse- 
quences of  a  mispaymerit.  Now  the  proceeds  of  the  George's  Val- 
ley lands,  which  had  not  been  included  in  any  of  the  deeds  of  trust, 
had  neither  been  paid  nor  secured  to  be  paid  to  Michael  or  Simon 
Gratz,  and  if  Mr.  Simon's  estate  has  been  compelled  to  pay  nowhere 
anything  that  was  not  due  somewhere  (and  we  are  to  suppose  the 
recovery  on  account-render  to  have  been  just),  what  is  the  difference 
whether  the  recovery  was  under  the  one  assignment  or  the  other  ? 
Or  how  can  it  be  said  that  the  recovery  was  not,  in  fact,  on  the 
assignment  to  Bernard  and  Michael  Gratz  ?  Either  assignment 
would  pass  the  whole  interest  of  Franks,  and  though  in  the  order 
which  accompanied  the  assignment  to  the  Messrs.  Gratz  (which, 
by  the  bye,  is  not  necessarily  a  part  of  the  title),  his  interest  in  the 
mortgage  is  estimated  at  a  moiety,  yet  if  the  estimate  were  errone- 
ous, it  would  not  restrain  the  operation  of  the  assignment  or  bind 
the  rights  of  the  parties  under  it.  The  same  estimate  is  in  Mr. 
Simon's  declaration  of  trust  of  the  ten  tracts,  and  the  same  remark 
is  applicable  to  it,  that  it  was  no  part  of  the  title  in  the  action  of 
account-render,  which  was  brought  for  the  proceeds,  not  of  those 
ten  tracts,  but  of  the  George's  Valley  lands,  which  had  been  con- 
veyed in  part  payment  of  the  mortgage  long  previously.  There  is 
nothing,  then,  in  the  way  of  an  intendment  that  the  recovery  was 
under  the  assignment  to  Bernard  and  Michael  Gratz  ;  and  it  is  cer- 
tainly no  breach  of  the  covenant  that  they  have  recovered  on  that 
or  any  other  title,  if  sucli  be  the  fact,  more  than  the  sum  to  which 
they  were  in  justice  entitled,  especially  as  the  excess  is  chargeable 
to  the  supineness  of  Mr.  Simon's  executors  in  omitting  to  file  excep- 
tions to  the  report  of  the  auditors  in  due  season.  Indeed,  if  we 
take  for  granted  what  is  assumed  in  the  opinion  of  the  court,  that 
the  recovery  was  actually  as  surviving  partner  of  Michael  Gratz,  it 
would  follow  demonstrably  that  it  must  have  been  on  the  assign- 
ment to  the  Messrs.  Gratz,  for  the  title  of  the  trustees  never  vested 
in  Bernard,  who  was  dead  when  it  was  got  in  by  Simon  Gratz.  But 
the  fact  is,  that  Michael  brought  the  action  in  his  own  name  and 
counted  simply  in  his  own  right.  But  whether  the  recovery  were 
on  the  one  title  or  the  other,  it  is  sufficient  that  nothing  is  to  be 
paid  twice  by  the  estate  of  Mr.  Simon  in  consequence  of  it ;  the 
contingency  against  which  the  covenant  was  intended  to  guard  not 
having  happened  nor  being  about  to  happen. 

On  what  ground,  then,  can  the  record  possibly  be  evidence  ?     It 
is  said  to  be  admissible  to  show  that  there  was  a  former  suit ;  that 


3GO  SUPREME  COURT  [Lancaster 

[Gratz  r.  Phillips.] 

the  plaintiff  in  that  cause  proved  the  tracts  in  the  names  of  Coxe 
and  Dunegan  to  be  part  of  the  Proctor  lands,  and  that  Mr.  Simon 
was  mistaken  as  to  these  and  the  George's  Valley  lands.  I  believe 
these  are  nearly  the  words.  It  is  admitted,  then,  that  the  record 
is  not  evidence  as  any  independent  fact,  but  as  inducement,  and  to 
what  ?  To  the  fact  that  the  plaintiff  proved,  on  the  trial  of  the 
action  of  account-render,  what  no  one  has  disputed  here.  That  these 
two  tracts  are  part  of  the  Proctor  lands  was  taken  for  granted  by 
all  parties  throughout  the  course  of  the  trial,  the  only  question 
having  been  whether  they  had  passed  to  Mr.  Simon  by  the  transfer 
of  Spear's  deed.  The  question  of  their  identity  with  the  Proctor 
lands  was  altogether  foreign  to  the  action  of  account-render,  which 
had  for  its  object  the  proceeds  of  the  George's  Aralley  lands,  which 
had.  at  different  times,  been  conveyed  to  Mr.  Simon,  in  part  satis- 
faction of  the  partnership  debt ;  and  whether  these  two  tracts  were 
part  of  any  body  of  lands  owned  by  Mr.  Simon  on  his  separate 
account,  was  no  part  of  the  inquiry.  It  was  sufficient  for  Mr. 
Gratz  not  to  claim  the  price  of  them,  that  they  were  not  sold. 
Neither  do  I  perceive  how  the  record  tended,  either  directly  or  aa 
an  inducement,  to  show  that  Mr.  Simon  had  confounded  the  Proc- 
tor and  the  George's  Valley  lands.  The  action  was  brought  after 
his  death,  and  neither  depended  on  nor  contributed  to  illustrate  the 
state  of  his  belief;  and  as  inducement  to  evidence  of  mistake,  it 
was  superfluous,  the  defendants  having  been  let  into  all  their  proofs 
of  the  fact  without  it.  But  the  truth  is,  their  aim  was  an  indirect 
one — not  to  make  way  for  evidence  of  mistake,  but  to  make  the 
alleged  mistake  tdl  if  proved,  by  evidence,  aliunde.  It  was  to  per- 
suade the  jury  that  Simon  Gratz  had  suffered  his  grandfather  to  die 
in  ignorance  of  a  fact  material  to  his  interest,  and  taken  advantage 
of  his  own  superior  knowledge  the  moment  he  was  gone.  But  the 
record  was  not  offered  in  the  aspect  in  which  it  is  declared  to  have 
been  competent ;  and  I  therefore  presume  the  new  trial  is  granted 
exclusively  for  the  admission  of  the  defeasance  executed  by  Mr. 
Levy. 

I  must  here  take  occasion  to  repeat  what  I  said  more  than  once 
at  the  argument,  that  this  paper  was  admitted  on  other  grounds 
than  a  supposed  valid  execution  of  it  under  a  parol  authority.  It 
bears  even  date  with  the  conveyance  to  Mr.  Simon,  to  which  it  has 
reference,  and  was  probably  executed  at  the  same  time  and  place. 
Add  to  this  that  Mr.  Simon  was  not  only  unlettered  and  dependent 
in  these  matters  on  the  services  of  his  friends,  but  it  had  appeared 
in  the  evidence  that  this  form  of  execution  had  been  used  by  him 
in  another  instance,  in  which  Mr.  Phillips,  one  of  the  defendants, 
executed  a  deed  for  him,  in  his  presence,  and  as  his  attorney-  On 
tli esc  proofs  I  thought  the  instrument  might  go  to  the  jury,  leaving 
them  to  judge  from  the  circumstances  whether  it  had  been  exe- 


May  1830.]  OF  PENNSYLVANIA.  361 

[Gratz  v.  Phillips.] 

cuted  in  Mr.  Simon's  presence  and  with  his  assent ;  and  if  so  found, 
it  would,  according  to  Shaub  v.  Withers,  ante  275,  be  his  immediate 
deed.  But  not  to  insist  upon  this,  there  is  another,  arid  it  seems  to 
me  an  impregnable  ground  of  competency  which  I  suggested  on 
the  trial  and  at  the  argument,  without  having  since  heard  it  con 
tested.  It  is  this  :  In  addition  to  the  circumstances  just  noted  the 
conveyance  to  Mr.  Simon  was  for  the  nominal  consideration  of  5#., 
being  accompanied  with  the  grantor's  bond  for  the  payment  of  a 
debt ;  and  this  bond  and  conveyance  had  been  preceded  by  another 
deed,  in  which  an  acknowledgment  of  the  debt  is  coupled  with  a 
declaration  that  these  very  lands,  among  others,  were  to  be  con- 
veyed to  Simon  to  secure  it.  Mr.  Levy,  who  executed  the  defeas- 
ance as  Mr.  Simon's  attorney,  was  his  confidential  agent  in  trans- 
acting his  current  business,  signing  in  that  capacity  receipts  and 
other  important  papers  in  Mr.  Simon's  name,  who  never  testified 
dissatisfaction  at  any  of  his  acts,  but  always  on  the  contrary  ratified 
them.  Mr.  Levy  had,  however,  executed  no  other  deed  than  the 
one  in  question.  All  this  was  proved  by  the  testimony  of  Mr. 
Etting  and  Mr.  Levy  in  a  way  to  insure  belief.  Now,  then,  if  a 
mortgage  was  intended,  of  which  there  cannot  be  rational  doubt,  and 
if  a  valid  execution  of  the  instrument  was  prevented  by  ignorance 
or  mistake,  what  would  a  chancellor  do  ?  Where  an  agreement  for 
a  mortgage  was  drawn  by  a  mortgagee,  who  omitted  to  insert  a 
covenant  for  redemption,  the  mortgagor,  who  was  only  a  markman, 
was  permitted  to  give  evidence  of  the  mistake  :  Joynes  v.  Slatham, 
3  Atk.  389.  Is  not  that  the  case  at  bar  ?  So  where  the  mortgage 
was  in  two  deeds,  and  the  mortgagee  omitted  to  execute  the  defeas- 
ance: Maxwell  v.  Montacute,  Prec.  Chan.  520;  s.  c.  1  Eq.  Ca. 
Abr.  19,  pi.  4,  5.  The  very  case  again.  So  also  where  an  abso- 
lute deed  was  made,  and  the  grantee,  instead  of  taking  the  profits, 
took  the  interest  of  his  money ;  this  was  given  in  evidence  as  ex- 
plicative of  the  transaction :  Id.  If,  then,  a  chancellor  would  not 
shut  his  eyes  on  any  of  the  attendant  circumstances  he  most  surely 
would  not  shut  them  on  the  defectively  executed  defeasance  of  all 
others  the  most  powerful  to  show  not  only  ignorance  and  mistake, 
but  the  precise  nature  of  the  meditated  terms  of  the  forbearance. 
What  has  our  own  court  done  ?  In  Wharf  i\  Howell,  5  Binn.  499, 
where  the  question  of  mortgage  or  not  depended  partly  on  parol  evi- 
dence, the  whole  was  left'  to  the  jury  as  a  matter  of  fact,  particularly 
the  testimony  of  the  scrivener  who  had  told  the  parties  that  the 
defeasance  in  connection  with  the  absolute  deed  constituted  a  mort- 
gage. If,  then,  the  jury  should  be  of  opinion  that  the  parties 
proceeded  on  an  impression  that  the  defeasance  executed  by  Mr. 
Levy  constituted  a  mortgage  at  law,  it  shall  be  taken  for  such  in 
equity.  But  how  shall  the  jury  judge  of  their  impression,  or  the 
terms  they  had  in  view,  without  seeing  the  paper  which  contains 


362  SUPREME  COURT  [Lancaster 

[Gtatz  r.  Phillips.] 

those  terras.  Of  their  actual  intent,  as  deducible  from  the  contem- 
plated defeasance  in  connection  with  the  other  circumstance,  it  is 
impossible  to  doubt.  At  a  time  when  there  was,  as  I  have  been 
told  by  the  late  Mr.  Justice  Yeates,  who  came  to  the  bar  in  1766, 
but  seven  country  lawyers  in  the  province,  and  consequently  when 
every  man  was  his  own  lawyer,  it  is  by  no  means  strange  that  these 
parties  should  have  thought  that  a  deed  might  be  executed  under  a 
parol  authority.  My  brother  Huston  himself  has  just  said  he  would 
even  now  have  thought  so,  too,  had  it  not  been  for  our  recent  decision 
in  Shaub  r.  Withers. 

From  another  position  in  the  opinion  of  the  court  I  am  constrained 
to  dissent  in  explicit  terms.  Among  the  lands  supposed  to  be  bound 
by  the  mortgage,  and  by  consequence  actually  bought  in  by  Mr. 
Simon,  are  the  two  tracts  in  the  names  of  Coxe  and  Dunegan.  To 
rebut  the  claim  of  the  plaintiffs  to  the  price  of  these  the  defendants 
attempted  to  show  that  they  were  bought  in  and  included  in  the 
deed  of  trust  by  mistake,  being  in  fact  Mr.  Simon's  own  property 
under  Trent's  conveyance  for  Mr.  Simon's  separate  debt.  In  refer- 
ence to  this,  it  is  said  in  the  opinion  of  the  court  that  if  it  be  once 
proved  to  a  jury  that  the  whole  proceeding  as  to  these  tracts  was  by 
mistake,  then  whether  they  belonged  to  Simon  exclusively  or  to 
Trent's  heirs,  Simon  Iciny  but  a  mortgagee — in  either  case  the  plain- 
tiffs have  no  claim  to  them.  I  admit  here,  and  I  so  directed  the  jury 
at  the  trial,  thai  if  Mr.  Simon  ignorantly  declared  a  trust  of  his 
own  land  it  would  not  bind  him,  and  this  whether  the  cestui  que 
tru.it  had  shown  the  truth  of  the  case  on  another  occasion  or  not. 
And  by  the  bye,  nothing  of  the  kind  is  pretended  to  have  been 
shown  in  action  of  account-render.  Take  it,  however,  according  to 
the  other  alternative,  that  Mr.  Simon  was  but  a  mortgagee,  and  the 
facts  connected  with  the  presumption  of  payment  from  lapse  of  time 
will  stand  thus.  On  the  bond  which  accompanied  the  conveyance 
in  176(J,  there  is  endorsed  a  receipt  for  interest  paid  by  a  fresh 
bond  in  1781.  Again,  in  1784  (not  1785,  as  assumed  in  the  opin- 
ion of  the  court),  Trent  gave  Mr.  Simon  another  bond,  but  whether 
for  principal  or  for  interest  due  on  the  preceding  or  for  any  other 
consideration,  as  there  is  no  other  receipt  endorsed  in  either  of 
them,  cannot  be  conjectured.  Then  from  1781  to  the  inception  of 
this  suit  in  1822  is  a  period  of  forty-one  years;  or  even  from  1784 
to  1822  is  a  period  of  thirty-eight  years,  during  which  no  act  was 
done  or  step  taken  by  Mr.  Simon,  to  obtain  satisfaction  of  this  debt. 
It  is  said  he  took  possession  of  these  lands  arid  treated  them  as  his 
own.  It  must  be  within  the  recollection  of  every  one  who  heard 
the  trial,  that  not  a  spark  of  evidence  was  given  to  that  effect,  and 
that  nothing  of  the  sort  was  pretended.  He,  nor  any  of  his  repre- 
sentatives, lias  ever  to  this  day  asserted  a  claim  to  these  lands  under 
the  deed  for  his  separate  debt,  either  as  a  mortgage  or  as  an  un- 


May  1830.]  OF  PENNSYLVANIA.  363 

[Gratz  0.  Phillips.] 

conditional  conveyance.  On  the  contrary,  the  purchase  of  them 
under  the  partnership  mortgage,  was  in  direct  disaffirmance  of  his 
supposed  title  to  them  on  his  separate  account.  What  act  has  he 
done,  then,  in  assertion  of  this  particular  claim,  or  what  is  there  to 
account  for  his  having  done  nothing?  It  is  idle  to  assign  Trent's 
poverty  as  a  reason  for  the  delay,  when  these  very  lands  might 
have  been  got  if  the  debt  had  not  been  paid.  If,  then,  this  convey- 
ance was  originally  a  mortgage,  of  which  there  is  no  room  to  doubt, 
the  presumption  of  payment  from  lapse  of  time  is  overwhelming, 
and  if,  as  is  neither  impossible  nor  improbable,  these  tracts  were 
included  in  the  partnership  mortgage  also,  then  there  is  nothing  in 
the  case  to  distinguish  them  from  the  others.  Take  it,  however, 
that  they  were  not  so  included,  and  we  have  the  case  of  lands  pur- 
chased on  joint  account,  by  one  of  two  joint  mortgagees,  and  sold 
by  him,  after  having  executed  a  deed  of  trust  to  his  companion, 
from  whom  he  detains  his  share  of  the  price  on  the  pretext  that  as 
the  land  was,  in  fact,  not  included  in  the  mortgage,  neither  has  a 
title.  This  would  be  a  strange  defence.  Having  purchased  at  their 
joint  risk,  they  are  jointly  entitled  to  the  profit,  and  that  too,  inde- 
pendently of  any  declaration  of  trust.  What  if  the  sheriff  had  sold 
to  a  stranger  ?  lie  could  not  have  set  up  want  of  consideration  as 
a  defence ;  and  either  mortgagee  could  have  ruled  the  money  into 
court  and  taken  his  share  of  it.  But  the  land  itself,  being  taken  in 
lieu  of  the  price  of  it,  is  to  be  treated  as  money  and  subjected  to 
the  same  rights.  Had  the  defendants  sold  with  general  warranty, 
they  would  have  been  entitled  to  retain  till  they  should  be  secured 
to  the  amount  of  their  share  of  the  risk  from  eviction,  but  no  war- 
ranty is  pretended  ;  moreover,  the  title  of  Trent's  heirs  is  barred  by 
the  Statute  of  Limitations. 

There  are,  beside  these,  some  other  shades  of  difference  between 
my  view  of  the  cause  and  that  taken  by  the  court ;  but  what  I  have 
said  sufficiently  indicates  my  reasons  for  thinking  the  verdict  right 
on  the  merits. 

SMITH,  J.,  concurred  with  the  chief  justice  in  regard  to  the  lia- 
bility of  Mrs.  Phillips ;  and  with  HUSTON,  J.,  as  to  the  merits. 

Ross,  J.,  concurred  with  HUSTON,  J. 

ROGERS,  J.,  did  not  sit  in  the  cause,  having  been  of  counsel  with 
the  defendants. 

Judgment  set  aside  and  a  new  trial  ordered. 

Commented  on,  1  Wh.  51U. 


364  SUPREME  COURT  [Lancaster 


Johnston  against  Brackbill. 

IN    ERROR. 

Where  the  issued  joined  was  on  the  plea  of  a  submission  and  an  award, 
and  the  submission  was  general  "  of  and  concerning  the  differences  depend- 
ing between"  the  parties ;  an  award  setting  forth  that  the  arbitrators  had 
examined  (heir  several  books  of  account,  and  taken  into  consideration  a  judg- 
ment bond  to  the  plaintiff  from  the  defendant,  and  finding  a  particular  sum 
due  to  the  former  on  that  bond,  without  determining  how  much,  or  whether 
anything  was  due  on  the  other  subjects  of  difference  submitted  to  or  exam- 
ined by  them,  is  not  final,  and  therefore  it  is  bad. 

Where  issue  is  joined  on  this  plea,  evidence  of  mistake  and  inadvertence 
in  the  arbitrators  in  making  the  award  is  made  inadmissible.  But  where 
euch  evidence  is  received  under  this  plea,  and  the  award  is  a  nullity,  the 
court  will  not  reverse  for  the  admission  of  such  evidence. 

Where  it  appears  by  a  calculation,  that  the  jury  did  not  allow  credits, 
of  which  incompetent  evidence  was  given,  the  judgment  will  not  be  reversed 
on  a  bill  of  exception  to  such  evidence. 

UPON  a  writ  of  error  to  the  Court  of  Common  Pleas  of  Lan- 
caster county,  the  case  was  thus  : 

Henry  Brackbill,  to  April  Term  1817,  issued  a  scire  facias  to 
revive  a  judgment  which  he  had  obtained  against  Richard  Johnston, 
the  plaintiff  in  error,  to  January  Term  1812. 

On  the  24th  December  1824, the  defendant,  Johnston,  put  in  this 
plea:  "payment,  under  which  he  intends  to  give  in  evidence  the 
award  of  referees,  mutually  chosen  by  the  parties,  by  which  all 
matters  in  this  suit  were  settled;"  the  plaintiff  replied,  "non  sol- 
vit"  and  issue  was  joined  thereon. 

And  now,  August  23d  1815,  the  cause  being  reached,  and  before 
the  jury  was  called,  the  defendant  offered  to  add  the  plea  of  a  sub- 
mission of  the  cause  of  action,  in  this  case,  to  arbitrators,  and  an 
award  made  in  pursuance  thereof;  which  the  plaintiff  objected  to, 
and  prayed  the  court  to  direct  the  plea  so  offered  to  be  drawn  up  in 
form,  which  is  accordingly  done,  arid  the  counsel  for  the  defendant 
moves  that  the  same  be  added,  which  motion  was  objected  to,  and 
on  argument  allowed. 

The  defendant  then  pleaded  that  the  plaintiff  and  defendant  on 
the  22d  day  of  March  1821,  submitted  themselves,  under  the  pen- 
alty of  $2000  each,  to  stand  to  the  award  of  David  Witmer,  John 
Hamilton  and  George  Hoffman,  "of  and  concerning  the  differences 
then  in  controversy  between  them,"  and  that  the  said  arbitrators, 
on  the  30th  April  1831,  awarded,  "of  and  concerning  the  prem- 
ises," a  balance  of  $1318.04,  from  the  said  Richard  to  the  said 


May  1830.]  OF  PENNSYLVANIA.  365 

[Johnston  v.  Brackbill.] 

Henry,  "to  be  due  upon  the  judgment-bond  which  the  said  Richard 
had  given  to  the  said  Henry  ;"  and  the  defendant  averred  that  the 
bond  on  which  the  original  judgment  was  entered  was  the  same 
bond,  and  that  he  had  been,  and  still  is  willing  to  stand  to  and 
abide  the  said  award.  To  this  plea  the  plaintiff'  replied,  that  said 
arbitrators  "did  not  make  any  such  award  of  and  concerning  the 
said  premises,  in  manner  and  form  as  the  said  Richard  had  in  his 
plea  alleged."  These  pleadings  were  formally  drawn  out  arid 
entered. 

The  cause  being  at  issue,  and  the  jury  sworn,  the  plaintiffs  hav- 
ing shown  the  original  judgment  rested  ;  the  defendant  then  gave 
in  evidence  the  submission  and  award  set  forth  in  his  plea. 

The  submission  was  in  these  words : 

"Whereas,  differences  have  arisen  between  Henry  Brackbill  and 
Richard  Johnston,  which  are  this  day  referred  amicably  by  us  unto 
David  Witmer,  John  Hamilton  and  George  Hoffman,  we  the  said 
parties  do  hereby  bind  ourselves,  our  heirs,  executors  and  adminis- 
trators, each  unto  the  other,  his  heirs,  executors  and  adminis- 
trators or  assigns,  in  the  penal  sum  of  $2000,  lawful  money  of  the 
United  States,  that  we  will  stand  to  the  award  or  settlement  that 
the  said  arbitrators  shall  make  out  under  their  hands." 

The  award  was  as  follows : 

"  We  the  undersigned  arbitrators  amicably 'appointed  by  Henry 
Brackbill  and  Richard  Johnston,  to  settle  all  matters  in  variance 
between  the  said  parties  do  report,  that  after  hearing  the  parties, 
examining  their  several  book-accounts,  and  also  taking  a  judgment- 
bond  from  said  Johnston  to  Brackbill  into  consideration,  we  find  a 
balance  of  $1318.04  due  from  Johnston  to  Brackbill  on  said  bond." 

The  defendant  having  given  this  submission  and  award  in  evi- 
dence, the  plaintiff  offered  to  prove,  that  on  the  1st  June  1815,  he 
entered  as  surety  of  Richard  Johnston  the  defendant,  into  a  certain 
bond  with  him  to  John  Neflf,  for  the  payment  of  $120  with  interest. 
And  also,  on  the  same  day  that  he  entered  into  another  bond  to 
John  Neff,  with  the  said  Johnston  as  surety  for  said  Richard,  for 
the  payment  of  a  like  sum,  which  said  sums  with  their  interest,  lie 
the  plaintiff,  had  to  pay,  and  did  pay  to  the  said  Neft',  in  discharge 
of  the  said  bonds,  on  the  default  of  payment  by  the  said  Richard, 
before  the  said  submission  and  award;  and  that  although  it  was 
admitted  by  the  said  Richard,  before  the  said  referees,  that  said 
Henry  had  paid  the  said  moneys  for  him,  by  inadvertence  and  mis- 
take, the  said  sums  were  not  credited  to  the  said  Henry  in  the  said 
award ;  which  was  not  known  to  him  till  after  the  said  award  was 
made,  which  testimony  was  objected  to  by  the  defendant  and 
received  by  the  court,  and  a  bill  of  exceptions  sealed. 

The  defendant's  counsel  requested  the  court  to  charge  the  jury, 
"that  the  submission  and  award  were  a  bar  to  the  recovery  of  the 
plaintiff' in  the  present  action." 


366  SUPREME  COURT  [Lancaster 

[Johnston  r.  Brackbill.] 

The  court  charged  the  jury,  that  the  defendant  had  given  no 
other  evidence  of  payment  than  that  which  was  proved  by  this 
award,  and  to  the  amount  of  the  sum  credited  by  the  referees,  the 
defendant  was  entitled  to  a  credit. 

u  But  the  plaintiff  has  proved  that  he,  as  surety  of  Richard 
Johnston,  joined  with  him  in  two  bonds  to  John  Neff,  each  for  the 
sum  of  $1-0,  the  amount  of  which  two  bonds  he,  Henry  Brackbill. 
settled  with  Neff;  and  it  was  offered  to  be  proved  that  it  was 
admitted  by  the  said  Richard  before  the  referees,  that  Brackbill 
had  paid  the  said  moneys  for  him,  and  that  by  inadvertence  and 
mistake,  the  said  sums  were  not  credited  to  Brackbill  in  the 
award,  which  was  not  known  to  him  till  after  the  award  was 
made.  The  question  of  fact  for  you  to  determine  is — has  this 
matter  been  proved.  If  it  has  been  clearly  made  out,  you  will  • 
make  the  allowance  claimed,  but  if  it  should  appear  to  you,  that 
Brackbill  had  an  opportunity  of  proving  the  fact  of  these  paynients 
before  these  referees,  and  neglected  it — if  it  does  not  clearly  appear 
to  you  that  the  payment  was  expressly  admitted  by  Johnston — and 
and  if  it  does  appear  that  there  was  a  mistake  or  inadvertence  on 
on  the  part  of  the  referees ;  and  that  the  award  was  made  on  the 
ground  of  want  of  proof  of  payment  of  the  bonds ;  then  Brackbill 
is  bound  by  it,  and  he  cannot  have  from  you  the  allowance  he 
claims  in  this  action." 

The  court  also  charged  the  jury  that  the  submission  and  an 
award  were  no  bar  to  the  plaintiff's  recovery  to  the  present  action. 
Upon  this  charge  the  court  sealed  a  bill  of  exceptions. 

The  jury  found  for  the  plaintiff,  $1659.40.  By  a  calculation 
now  made,  this  was  ascertained  to  be  the  amount  of  the  award  with 
interest. 

The  plaintiff  in  error  assigned  for  errtfrs  : 

1st.  The  admission  of  the  evidence  contained  in  the  first  bill  of 
exceptions. 

2(1.  That  the  court  below  should  have  answered  the  point  sub- 
mitted to  them  by  the  counsel  of  the  plaintiff  in  error,  in  his  favor. 

3d.  That  the  court  erred  in  instructing  the  jury,  that  if  the 
facts  were  clearly  proved,  they  should  make  the  allowance  claimed 
in  consequence  of  the  alleged  mistake  of  the  arbitrators,  in  not 
crediting  the  amount  of  the  two  bonds  paid  by  Brackbill  to  Neff,  in 
which  he  was  surety  for  Johnston. 

Porter,  for  the  plaintiff  in  error,  contended  that  the  issue  was  on 
the  plea  of  nul  tiel  record,  and  the  evidence  offered  and  received, 
was  to  prove  a  mistake  in  making  it,  and  a  plain  departure  from 
the  issue  :  1  Saund.  327,  note  1  ;  2  Id.  84,  b.  and  c. ;  Kidd  on 
Awards  381  ;  Williams  v.  Paschall,  3  Yeates  564. 

On  the  plea  of  non  assumpsit,  to  an  action  founded  on  the  award 
of  arbitrators,  without  notice  of  special  matter,  the  defendant  can- 


May  1830.]  OF  PENNSYLVANIA.  3G7 

[Johnston  v  Brackbill.J 

not  give  mistake  of  the  arbitrators  in  evidence :  Taylor  v.  Coryell, 
12  S.  &  R.  243. 

Second  error.  The  award  is  a  bar  to  the  plaintiff  and  his  only 
remedy  is  upon  the  agreement  of  submission  :  1  Phil.  Ev.  [305,] 
[242];  Kidd  on  Awards  381. 

Third  error.  The  award  is  conclusive  upon  the  parties  :  1  Phil. 
Ev.  [73,]  305,  306  ;  Underbill  v.  Van  Courtland,  2  Johns.  Ch. 
339  ;  Todd  v.  Barlow,  3  Johns.  R.  367.  To  avoid  it,  there  must 
be  either  fraud  in  the  party  or  misconduct  in  the  arbitrators,  which 
must  be  specially  pleaded,  or  a  notice  of  it  given  under  a  general 
plea  :  Davis  v.  Ilavard,  15  S.  &  R.  165 ;  Taylor  v.  Coryell,  12 
Id.  243. 

Jenkins  and  Hopkins,  for  the  defendants  in  error. — The  verdict 
by  calculation  is  ascertained  to  be  the  amount  of  the  award  with 
interest.  This  the  plaintiff  in  error  admits  to  be  due,  and  why, 
therefore,  reverse  the  judgment.  The  admission  of  the  evidence 
then  is  without  prejudice  to  the  plaintiff  in  error,  and  if  there  were 
error  in  it,  this  court  will  not  reverse  for  an  error,  which  has  done 
the  party  alleging  it  no  injury :  Collins  v.  Rush,  7  S.  &  II.  147  ; 
Allen  t>.  Rostain,  11  Id.  372-3;  Brady  v.  Calhoun,  1  P.  &  AV. 
140,  and  the  court  will  look  through  the  whole  record  to  ascertain 
if  any  injury  has  resulted  to  the  party  from  such  error. 

The  plea  was  improperly  received,  and  therefore  cannot  affect 
the  argument.  The  award  was  made  in  1821,  and  the  plea  not  put 
in  until  1825,  on  the  trial,  and  against  the  consent  of  the  plaintiff. 
The  plea  was  a  plea  puis  darien  continuance,  and  ought  not  to 
have  been  received  out  of  time. 

It  is  here  a  plea  without  merits,  and  besides  being  out  of  time,  it 
could  not  be  put  in  without  the  payment  of  all  costs. up  to  the  time 
it  is  put  in  ;  for  it  admits  that  all  was  right  on  the  part  of  the  plain- 
tiff up  to  that  time :  Ilostetter  v.  Kaufman,  21  S.  «fe  R.  146. 

But  the  lien  of  the  plaintiff's  judgment,  and  the  judgment  itself 
could  not  be  destroyed  by  the  award,  without  going  farther,  and 
proving  satisfaction. 

The  award  was  no  bar,  for  two  reasons :  First.  Because  it  was 
made  on  a  plain  mistake.  Second.  It  was  not  an  award  in  this 
action. 

At  law  an  award  is  conclusive,  but  in  equity  it  is  open  to  show 
fraud  or  mistake.  We  could  not  give  notice  of  our  ground  of  re- 
sistance of  the  award  for  it  was  not  pleaded  until  the  trial :  and  be- 
sides, such  notice  is  required  from  the  defendant,  and  never  from 
the  plaintiff. 

But,  it  is  no  award  in  this  action  ;  the  submission  does  not  state 
any  action.  It  referred  to  "differences  which  had  arisen  ;"  but  this 
judgment  was  not  a  difference.  It  had  been  ascertained  at  law, 
and  the  payments  upon  it  Arere  but  a  reduction  of  that  sum. 


3G8  SUPREME  COURT  [Lancaster 

[Johnston  v.  Brackbill.] 

The  award,  they  contended,  was  not  in  this  collateral  way  a  legal 
defence,  it  was  a  mere  equitable  defence,  of  which  the  defendant 
had  the  full  benefit. 

Buchanan,  for  the  plaintiff  in  error,  in  reply. — The  question  is 
not  whether  31300  are  due  to  the  plaintiff  or  not,  but  whether, 
after  a  party  has  submitted  his  cause  of  action  to  arbitrators,  he 
can,  when  an  award  has  been  made  on  the  submission,  proceed  on 
the  original  cause  of  action.  He  denied  that  the  plaintiff  haii  an 
election  to  proceed  on  the  judgment,  or  on  the  submission.  His 
remedy  is  alone  on  the  submission,  and  the  award  is  the  evidence 
of  the  extent  of  his  claim  ;  and  a  court  of  equity  would  enjoin  him 
from  proceeding  on  a  judgment,  if  that  was  his  cause  of  action,  or 
if  he  brought  suit  on  the  original  cause  of  action,  he  would  be  barred 
upon  the  plea  of  the  award ;  as  that  cause  of  action  is  wholly  ex- 
tinguished by  the  award. 

The  plea  was  properly  put  in,  although  that  is  not  an  open  ques- 
tion here.  It  is  not  a  p\e&  puis  darrien  continuance,  but  a  plea  to 
the  further  maintenance  of  the  action.  The  latter  is  put  in  where 
something  has  occurred  after  suit  brought,  but  before  issue  joined, 
upon  which  the  defendant  wishes  to  rely  ;  the  former  on  something 
occurring  after  issue  joined.  The  first  plea  put  in  by  the  defend- 
ant was  a  plea  of  payment,  with  a  notice  of  his  reliance  upon  the 
award,  and  the  plea  put  in  on  the  trial  was  putting  into  form  that 
which  had  been  before  informally  pleaded. 

The  evidence  received  was  clearly  inadmissible.  The  issue  joined 
was  award  or  no  award ;  and  under  this  issue  it  was  manifestly  in- 
competent to  prove  that  the  award  was  made  by  mistake.  If  the 
award  were  made  by  mistake  this  may  be  shown,  but  it  must  be 
specially  pleaded. 

But  it  is  said  that  no  injury  was  done  by  this  evidence,  and  to 
prove  this,  what  is  called  arithmetical  progression  is  resorted  to,  to 
show  that  the  amount  of  the  verdict  consists  with  the  evidence,  in- 
dependent of  this  testimony.  It  is  not  denied  that  the  court  will 
not  reverse  for  error,  where  it  is  plain  no  injury  was  done. 

But  adopt  the  principle  that  you  may  go  into  the  jury  box,  and 
by  calculation  ascertain  upon  what  they  decided,  and  you  are  at 
once  at  sea  without  a  compass  ;  and  the  sacred  rules  of  the  common 
law  will  be  lost  in  a  maze  of  conjecture  as  to  what  influenced  the 
decision  of  the  jury. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  plaintiff  having  joined  issue  on  the  plea  of 
a  submission  and  an  award,  will  fail  if  the  award  shown  be  valid. 
The  defendant  relies  on  strict  rules  of  pleading,  without  regard  to 
the  obvious  justice  of  the  case,  and  is  therefore  to  be  held  to  strict 
rules  of  law.  The  submission  was  general,  "  of  and  concerning  the 


May  1830.]  OF  PENNSYLVANIA.  369 

[Johnston  r.  Blackbill.] 

differences  then  depending  between  them ;"  not  of  all  matters  in 
controversy  between  them  in  this  or  any  other  action.  The  award 
sets  forth,  that  after  hearing  the  parties,  examining  their  several 
books  of  account,  and  taking  into  consideration  a  judgment-bond 
to  the  plaintiff  from  the  defendant,  the  arbitrators  find  a  particular 
sum  due  to  the  former  on  that  bond,  without  determining  how  much, 
or  whether  anything  were  due  on  the  other  subjects  of  difference 
submitted  to,  or  examined  by  them.  We  may  conjecture  with  a 
probable  degree  of  certainty,  that  the  sum  awarded  is  the  general 
balance ;  but  that  is  not  a  necessary  or  even  a  natural  conclusion. 
Else  why  refer  it  to  this  particular  item  of  charge  ?  The  submis- 
sion was  not  of  the  particular  bond,  but  of  the  differences  between 
the  parties,  and  it  seems  from  the  introduction  of  their  books  of 
account,  they  had  several.  Now  there  is  no  severer  rule  than,  that 
an  award  must  be  not  only  conveniently  certain  and  mutual,  but  so 
final  as  to  terminate  all  the  differences  submitted.  I  admit  that 
this  rule  is  relaxed  here  in  some  respects ;  but  we  must  remember 
that  we  are  here  on  rules  of  pleading,  which  require  greater  cer- 
tainty than  is  necessary  by  our  ordinary  practice.  Had  the  arbi- 
trators awarded  a  general  balance,  we  would  be  bound  to  suppose 
they  had  determined  all  the  difference  in  controversy,  and  their 
aw-ird  would  have  been  mutual,  final  and  reasonably  certain.  But 
they  have  eluded  this  conclusion  by  specially  awarding  the  balance 
of  a  particular  item,  without  saying  anything  of  the  rest ;  so  that 
being  bad  in  this  respect  they  have  made  no  award  at  all.  It  may 
be  alleged  that  the  defect,  if  any,  appears  on  the  face  of  the  plea, 
and  that  the  plaintiff  ought  therefore  to  have  demurred.  But  it 
does  not  appear  by  the  award  pleaded,  that  more  than  one  subject 
of  difference  was  laid  before  the  arbitrators,  so  that  it  would  be  im- 
possible to  say  all  had  not  been  decided ;  while  by  the  award  given 
in  evidence,  it  appears  there  were  several.  The  evidence  there- 
fore did  not  support  the  plea. 

The  award  having  been  given  in  evidence,  the  plaintiff  was 
allowed  to  prove  that  certain  credits  to  which  he  supposed  himself 
entitled,  had  been  omitted  by  an  oversight;  and  the  court  charged 
that  an  error  by  mere  inadvertence  of  the  arbitrators  might  still  be 
corrected.  Had  the  award  been  conclusive,  there  would  have  been 
error  in  the  admission  of  the  evidence,  and  the  direction  consequent 
on  it.  But  it  is  not  easy  to  see  how  a  vicious  award  should  have  ;i 
controlling  influence  on  the  evidence  under  the  plea  of  payment. 
But,  putting  that  matter  aside,  it  appears  from  the  verdict  itself, 
which  is  exactly  for  the  sum  awarded,  with  the  intervening  interest, 
that  those  credits  were  in  fact  rejected.  It  is  said  we  cannot  follow 
incompetent  evidence,  or  a  misdirection  into  the  jury-box  to  ascer- 
tain its  operation.  The  law  is  clearly  otherwise.  In  Preston  i'. 
Harvey,  2  Hen.  &  Munf.  55,  and  NVolverton  v.  Commonwealth,  7 
S.  &  11.  1273,  an  error  in  the  admission  of  incompetent  evidence 

1  P.  &  W.— 24 


370  SUPREME  COURT  [Lancaster 

[Johnston  v.  Brackbill.] 

was  held  to  be  cured  by  conclusive  proof  of  the  fact,  on  the  ground 
that  the  previous  evidence  could  not  have  had  an  influence  on  the 
verdict.  So  in  Faulcon  v.  Harris,  2  Hen.  &  Munf.  550,  the  ad 
mission  of  incompetent  evidence  which  appeared  by  the  verdict  to 
have  been  inoperative,  was  held  to  be  immaterial.  And  in  Camp- 
bell's Executors  v.  Colhoun's  Administrators,  ante,  140,  it  was  held 
that  a  misdirection  in  point  of  law  might  be  cured  by  a  finding  on 
a  distinct  ground  of  fact  to  which  the  rule  laid  down  was  inappli- 
cable. The  principle  stated  by  the  chief  justice,  in  Allen  v.  Ros- 
tain,  11  S.  &  R.  374,  is  founded  in  justice  as  well  as  authority. 
Our  business  is  not  with  abstract  principles,  but  injuries  from  the 
application  of  them.  As  therefore  the  error  of  the  court  in  at- 
tempting to  supply  omissions  in  the  award,  did  not  vary  the  result, 
the  judgment  is  unimpeachable. 

Judgment  affirmed. 

Referred  to,  17  Smith  299. 

Followed,  6  Wh.  302 ;  5  H.  523 ;  7  C.  501. 


May  1830.]  OF  PENNSYLVANIA.  371 


Johnson  agaimt  Matson. 

Where  under  proceedings  in  partition  in  the  Orphans'  Court  to  divide  the 
lands  of  S.  the  same  was  appraised  and  taken  by  M.,  who  had  married  one 
of  the  children  of  S.,  and  who  acknowledged  recognisances  to  the  other  chil- 
dren for  their  skares;  the  wife  of  M.  can  claim  nothing  against  her  hushand 
or  a  purchaser  of  his  estate,  but  the  undivided  share  which  descended  to  her, 
and  which  remains  specifically  in  land  after  all  the  purposes  of  distribution 
have  been  answered. 

THIS  was  an  ejectment,  brought  in  the  District  Court  of  York 
county,  by  the  defendant  in  error,  to  recover  from  James  Johnson 
one  hundred  and  ninety-six  acres  of  land.  The  facts  were  as 
follows : 

James  Sinclair,  the  father  of  Mary  Matson,  died  in  1807,  seised 
in  fee  of  two  tracts  of  land,  one  of  one  hundred  and  ninety-three 
acres,  the  other  the  land  in  dispute.  He  left  seven  children  (of 
whom  the  plaintiff  is  one),  and  the  children  of  a  deceased  child.  In 
1811  application  was  made  to  the  Orphans'  Court  to  divide  these 
two  tracts  amongst  the  children  of  Sinclair,  agreeably  to  the  intes- 
tate laws,  and  in  pursuance  thereof  the  tract  of  one  hundred  and 
ninety-three  acres  was  valued  at  $3200,  and  was  decreed  by  the 
said  court  to  the  eldest  son,  who  gave  security  to  the  other  heirs  for 
their  distributive  shares.  The  tract  of  one  hundred  and  ninety-six 
acres,  the  land  in  dispute,  was  valued  at  $1127,  and  was  decreed  to 
Adley  Matson,  who  had  intermarried  with  the  plaintiff,  he  entering 
into  a  recognisance  to  secure  to  each  heir  $140.50,  the  sum  they 
were  severally  entitled  to. 

In  1813  Shenberger  obtained  judgment  against  Adley  Matson, 
on  which  the  land  decreed  to  him  was  sold  by  the  sheriff  to  the 
defendant  Johnson,  for  $450,  and  a  deed  acknowledged  January 
1816.  At  the  time  of  the  sale,  Johnson,  the  purchaser,  held  three 
judgments  against  Matson,  amounting  to  $650.  Matson  died  in 
December  1826. 

The  court  charged  that  the  plaintiff  was  entitled  to  recover  the 
whole  tract,  and  recommended  a  verdict  accordingly. 

Verdict  and  judgment  for  the  plaintiff. 

Lewis  and  Bamitz,  for  plaintiff  in  error. — The  Orphans'  Court 
had  no  power  to  concentrate  the  interest  of  the  wife,  but  that  inte- 
rest remained  in  the  land,  unaffected  by  the  decree  of  the  Orphans' 
Court  vesting  the  estate  of  her  father  in  her  husband  under  the 
intestate  law.  The  estate  in  one  tract  was  decreed  to  him  by  the 
court,  and  it  is  only  as  to  one-eighth  part  (her  proportion),  they 
take  by  descent,  but  of  the  other  seven-eighths  the  husband  was  the 


372  SUPREME  COURT  [Lancaster 

[Johnson  v.  Matron.] 

purchaser,  when  he  entered  into  a  recognisance  to  secure  the  shares 
of  the  other  children.  As  to  her  interest  in  the  other  tract,  that 
by  the  decree  of  the  Orphans'  Court  was  converted  into  personalty. 
All  these  facts  being  set  forth  in  the  records  of  the  court,  through 
which  the  title  to  the  land  sold  was  made,  the  plaintiff'  in  error, 
who  was  the  purchaser,  was  necessarily  cognisant  of  them.  The 
court  below  gave  judgment  against  the  defendant  for  the  whole  of 
the  land  purchased,  which  was  more  than  the  wife  would  be  entitled 
to,  out  of  all  the  real  estate  of  her  father,  the  larger  portion  of 
which  had  been  converted  into  personalty,  and  the  right  thereto 
clearly  vested  in  the  husband :  Kean  v.  Ridgway,  16  S.  &  R.  GO ; 
Stoolfoos  i'.  Jenkins,  8  Id.  175 ;  Smith  v.  Scudder,  11  Id.  325. 

Evam,  contra. — Mary  Matson,  the  plaintiff,  claimed  the  whole 
tract,  on  the  ground  that  her  husband  took  in  her  right.  The  pay- 
ing, or  securing  to  be  paid,  the  shares  of  the  other  children,  could 
not  entitle  him  to  the  fee-simple  of  the  estate.  He  was  a  trustee 
for  the  wife  in  whom  the  fee-simple  vested,  and  his  interest  was  but 
a  life-estate.  If,  then,  he  be  received  as  a  trustee  to  take  the  estate 
in  trust  for  his  wife,  he  would  be  a  trustee  to  bind  the  same  in  fee- 
simple  by  a  recognisance  in  favor  of  the  other  heirs ;  that  in  this 
case  Adley  Matson  took  in  right  of  his  wife,  and  as  it  appeared  of 
record,  Johnson,  the  purchaser  at  sheriff's  sale,  had  notice  of  it : 
Blocker  v.  Cormony,  1  S.  &  R.  460 ;  Fogelsonger  v.  Somerville,  6 
Id.  167 ;  Stoolfoos  v.  Jenkins,  8  Id.  175. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  principles  of  this  case  have  been  already 
settled  on  terms  so  explicit  as  to  occasion  surprise  at  finding  them 
misapprehended  in  the  court  below.  A  wife  can  claim  nothing 
against  her  husband  or  a  purchaser  of  his  estate,  but  the  undivided 
share  which  descended  to  her,  and  which  remains  specifically  in 
land,  after  all  the  purposes  of  distribution  have  been  answered. 
Here  she  was  permitted  to  recover  all  the  land  that  was  accepted 
by  her  husband  at  the  valuation,  because,  as  it  was  said,  he  hud 
paid  nothing  for  it,  and  was  entitled  to  nothing  more  than  his 
courtesy  initiate,  which  determined  at  his  death.  But  he  acknowl- 
edged recognisances  to  the  other  children,  which,  if  not  paid,  may 
yet  be  recovered  of  his  estate  or  of  the  land  in  the  hands  of  the  de- 
feiidant.  Even  should  their  interest  not  be  divested,  what  right 
can  that  give  the  plaintiff  to  anything  beyond  her  own  share?  In 
Kean  v.  Ridgway,  16  S.  &  R.  60,  it  was  held  that  her  portion  of 
the  whole  estate  is  not  concentrated  in  a  particular  part  accepted 
by  the  husband;  and  there  is  no  reason  why  it  should  be  thus  con- 
centrated where  her  whole  portion  has  not  been  taken  specifically 
in  land.  The  doubt  sometimes  expressed  of  the  principle  of  Yohe  v. 
Harriet  seems  to  me  to  be  without  due  consideration.  Why  should 


May  1830.]  OF  PENNSYLVANIA.  373 

[Johnson  v.  Matson.] 

the  price  of  a  wife's  land  be  exempt  from  her  husband's  marital 
rights  where  transmutation  has  been  the  necessary  consequence  of  a 
process  of  distribution  ?l  Equity  insists  on  a  provision  for  the  wife, 
not  in  consequence  of  any  imperfection  in  the  husband's  title  to  her 
personal  estate,  but  as  the  price  of  its  interposition  in  his  favor. 
But  where,  as  in  the  case  of  a  recognisance  to  the  wife,  her  money 
may  be  reached  by  an  action  at  law,  no  chancellor  would  pretend 
that  he  is  not  both  in  equity  arid  at  law,  the  absolute  owner  of  it ; 
and  to  treat  it  as  land,  or  follow  it  into  land  purchased  with  it,  for 
the  purpose  of  establishing  a  resulting  trust  in  favor  of  the  wife, 
would  introduce  an  equity  hitherto  unknown  to  the  English  or  the 
American  courts.  But  even  were  there  rgom  to  doubt  the  propriety 
of  that  decision  on  the  ground  of  any  admitted  principle  of  equity, 
it  has  since  entered  into  such  a  countless  number  of  estates  as  a 
rule  of  property  as  to  render  the  mischief  that  would  be  produced 
by  disturbing  it  now  incalculable.  In  the  case  at  bar,  therefore, 
the  plaintiff  is  entitled  to  recover  only  her  purpart  in  the  part  taken 
by  her  husband  as  it  descended  to  her. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

Referred  to,  7  B:vrr  50  ;  6  Smith  159. 
Followed,  in  Snevily  v.  Wagner,  8  Barr  396. 


Richwine  against  Heim. 


IN    ERROR. 


An  assignment  by  a  husband,  under  the  insolvent  laws,  of  his  wife's 
choses  in  action,  defeats  her  right  of  survivorship,  in  case  he  dies  before  they 
are  reduced  into  possession. 

THIS  case  came  before  the  court  on  a  writ  of  error  to  the  District 
Court  of  York  county,  where  judgment  had  been  rendered  for  the 
defendant  in  error  on  the  following  facts : 

The  father  of  the  plaintiff  by  his  will,  proved  in  1787,  bequeathed 
to  her  certain  sums  of  money  which  he  left  as  a  charge  on  his  real 
estate  (part  whereof  now  belongs  to  the  defendant),  and  which  were 
made  payable  to  her  at  successive  intervals  of  seven  years,  the  last 
of  which  became  due  on  the  7th  March  1827.  In  June  171*0,  she 
married  John  Richwine,  who  afterwards,  in  179(j,  took  the  benefit 
of  the  insolvent  laws,  and  assigned  all  his  estate,  real  and  personal, 
to  trustees  for  the  benefit  of  his  creditors.  The  assignment  em- 
braced not  only  what  was  set  out  in  the  schedule  annexed  to  his 
petition,  but  also  all  other  estate  that  he  was  possessed  of  or  entitled 
to  in  right  of  his  wife  or  otherwise.  In  \^'1'1  Richwine  died,  at 

1  See  29  March  183U,  §48  P.  L.  1>05  and  11  April  1S4S,  $6  P.  L.  536. 


374  SUPREME  COURT  [Lancaster 

[Richwine  r.  Heim.] 

which  time  his  trustees  had  received  all  the  instalments  due  on  the 
land  hut  that  of  March  1827,  to  recover  which  when  it  fell  due  suit 
was  brought  by  his  wife. 

Evans,  for  the  plaintiff  in  error. — The  husband  of  the  plaintiff 
having  assigned  under  the  insolvent  laws,  we  contend  that  the 
legacy  to  the  wife  not  reduced  into  possession  survived  to  her : 
Ham.  Eq.  Dig.  203,  §  11 ;  2  Madd.  Chan.  16  ;  Hartman  v.  Doudel, 
1  Rawle  279.  The  assignment  of  an  insolvent  reserves  a  reversion- 
ary interest,  and  is  not  absolute'  but  in  the  nature  of  a  security. 
Choses  in  action  of  the  wife  not  being  reduced  into  possession  in 
the  life  of  the  husband  survive  to  her ;  and  the  assignment  of  them 
merely  vests  in  the  assignee  the  same  right  the  husband  had,  and 
subject  to  the  like  contingency  of  surviving  to  the  wife.  We  do 
not  claim  for  the  payments  made  before  the  husband's  death. 

Barnitz,  for  the  defendant  in  error. — The  plaintiff  below  claimed 
the  payments  made  in  the  lifetime  of  the  husband.  The  cases  re- 
ferred to  in  England  are  under  the  Statute  of  Bankruptcy  in  a 
system  sui  generis.  In  the  earlier  cases  they  held  there  that  bank- 
ruptcy took  away  survivorship,  but  this  was  afterwards  doubted. 
There,  too,  the  principle  prevails  when  chancery  has  possession  of  a 
fund  for  that  court  to  require  a  provision  for  the  wife  when  appli- 
cation is  made  for  that  fnnd.  Here  no  such  jurisdiction  exists. 
But  this  assignment  is  under  an  Act  of  Assembly  which  requires 
every  possible  interest  to  be  assigned.  The  husband  may  assign  a 
possibility  for  a  valuable  consideration,  and  this  excludes  the  right 
of  survivorship.  In  the  case  of  Hartman  v.  Doudel,  the  assign- 
ment was  as  a  collateral  security.  That  case  decides  that  the  hus- 
band may  .assign  the  choses  in  action  of  his  wife  for  a  valuable 
consideration  and  bar  her  right  of  survivorship,  but  that  a  volun- 
tary assignment  would  not  have  that  effect.  Here,  however,  the 
assignment  was  absolute  and  for  the  payment  of  debts,  which  is  a 
valuable  consideration,  and  not  as  a  collateral  security. 

Letvis,  in  reply. — The  words  of  the  assignment  in  this  case  if 
they  go  beyond  the  law  are  inoperative.  The  Act  of  Assembly 
requires  that  he  should  assign  his  estate.  What  is  his  estate  ?  His 
interest  in  this  chose  in  action  was  a  particular  interest  subject  to 
the  right  of  survivorship,  and  so  it  must  be  assigned.  An  assign- 
ment is  a  strict  legal  right,  and  derives  no  aid  in  England  from  any 
principle  in  equity.  The  case  comes  precisely  within  the  principle 
in  Hartman  v.  Doudel.  The  assignment  was  collateral  to  the  debt 
which  remained,  and  the  creditors  were  not  even  parties  to  it.  The 
right  to  imprison  is  collateral  to  the  debt.  And  where  as  assign- 
ment is  collateral  to  the  debt,  the  wife's  right  of  survivorship  is  not 
defeated :  Hartman  v.  Doudel,  1  Rawle  279. 


May  1830.]  OF  PENNSYLVANIA.  375 

[Richwine  v.  Heim.] 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J.  (who  after  recapitulating  the  facts,  continued). — The 
assignment  was  made  in  pursuance  of  the  Act  of  the  14th  of  Feb- 
ruary 1730,  entitled  "  An  act  for  the  relief  of  insolvent  debtors 
within  the  province  of  Pennsylvania  :"  1  Sm.  Laws  181.  Had  the 
husband  assigned  to  the  two  creditors,  who  are  named  as  his  trus- 
tees,  all  his  estate,  in  discharge  of  their  particular  debts,  there 
would  be  no  doubt  of  their  right  to  the  money  in  question.  It 
would  be  a  perversion  of  justice,  then,  to  say  that  his  assignment 
to  them  in  trust  for  the  benefit  of  all  his  creditors,  an  assignment 
without  preference,  is  not  equally  effectual  in  securing  the  amount 
to  them  all.  If  the  assignment  had  been  made  without  regard  to 
the  Act  of  Assembly,  it  would  have  passed  the  absolute  right  to 
this  money  ;  and  as  there  is  nothing  in  the  act  but  what  strengthens 
rather  than  diminishes  the  consideration,  we  are  of  opinion  that  the 
plaintiff's  right  of  survivorship  is  defeated.  The  observations  in 
the  case  of  Lodge  v.  Hamilton,  2  S.  &  R.  491,  strongly  fortify 
this  conclusion.  The  judgment  of  the  District  Court  must  be 
affirmed. 

Judgment  affirmed. 

Referred  to,  4  R.  481. 

Commented  on  and  distinguished,  10  Barr  434  ;  1  II.  563,  564. 

Followed,  7   W.  &  S.  169;  See  April  llth  1848,  §6,  P.  L.  536. 


Tyson  et  al.  against  Pollock. 

IN    ERROR. 

A.  &  Co.  and  B.  &  Co.  contracted  jointly  to  purchase  from  C.  a  quantity  of 
wheat,  for  which  they  were  to  give  the  notes  of  certain  banks,  which  were 
specified.  A  part  of  the  wheat  was  delivered  to  A.  &  Co.  and  a  part  to  B.  <fe 
Co.,  without  the  knowledge  of  C.,  for  which  their  respective  receipts  were 
taken.  Afterwards  A.  &  Co.  gave  drafts  on  E.  at  forty-five  days,  for  the 
grain  received  by  them,  which  the  receipt  stilted  would  be  considered  as  so 
much  money,  when  paid.  B.  &  Co.  also  gave  their  draft  at  forty-live  days  on 
F.  for  the  wheat  they  had  received,  in  the  acknowledgment  of  which  it  was 
set  out,  "  that  when  paid  it  would  be  in  full."  On  receiving  those  drafts.  0. 
gavo  up  the  receipts  which  A.  &  Co.  and  B.  &  Co.  had  given  for  the  urain. 
Held,  that  by  the  acceptance  of  these  drafts,  the, joint  contract  of  the  partner 
firms,  was  not  merged  in  their  separate  responsibility. 

Each  partner  is  separately  the  agent  of  the  rest,  with  authority  to  pay 
the  whole  or  any  part  of  the  debts,  and  payment  by  him  is  essentially  pay- 
ment on  joint  account. 

Tins  case  came  before  the  court  on  a  writ  of  error  to  the  Dis- 
trict Court  of  York  county,  where  judgment  had  been  rendered  for 


376  SUPREME  COURT  [Lancaster 

[Tyson  r.  Pollock.] 

the  defendant  in  error,  who  was  there  the  plaintiff,  on  the  following 
"special  verdict." 

The  defendants,  Charles  M.  Poor,  William  Tyson  and  Nathan 
Tyson,  as  Tyson  &  Co.,  and  Jesse  McConky  and  Samuel  Byrnes, 
as  Byrnes  &  Co.,  executed  this  contract : 

"York  Haven,  5th  April  1817. 

"  These  will  certify  that  we  have  this-  day  purchased  of  W.  &  T. 
Pollock,  three  thousand  bushels  wheat,  at  $--50  per  bushel,  to  be 
delivered  on  or  before  the  25th  instant,  if  practicable,  payable  on 
delivery  or  as  soon  thereafter  as  it  may  be  called  for,  in  money  of 
Northumberland,  Swatara,  Harrisburg,  York,  Columbia,  Lancaster 
or  Baltimore  banks. 

TYSON  &  Co. 
For  BYRNES  &  Co. 

CHARLES  M.  POOR." 

The  wheat  therein  mentioned  was  delivered  agreeably  thereto. 
It  was  forwarded  by  the  plaintiff,  who  resides  on  the  Susquehanna, 
in  Union  county,  in  boats  to  the  defendants'  mills  at  York  Haven, 
in  York  county,  and  there  received  by  the  defendants  from  the  plain- 
tiffs' boatmen,  and  divided  equally  by  the  two  firms,  in  the  absence 
of,  and  without  the  knowledge  of  the  plaintiff  or  his  partner ;  and 
the  two  firms  severally  delivered  to  the  boatmen  their  respective 
receipts  for  the  part  by  them  severally  received  as  aforesaid,  which 
receipts  were  delivered  to  the  plaintiff  by  the  boatmen,  and  by 
the  plaintiff  afterwards  delivered  to  the  defendants,  on  their  exe- 
cuting the  drafts  hereinafter  mentioned.  After  the  delivery  of  the 
wheat  as  aforesaid,  drafts  were  given  to  the  plaintiff  by  Byrnes  & 
Co.  on  Samuel  Byrnes  of  Baltimore,  dated  York  Haven,  10th  May 
1817,  payable  forty-five  days  after  date — two  of  them  for  $2000 
each  and  two  for  $300  each — (which  said  drafts  were  all  marked 
"accepted,  S.  Byrnes"),  for  the  amount  of  wheat  which  that  firm 
had  received  as  aforesaid,  and  this  receipt  given  by  plaintiff:' 

"  Received,  York  Haven,  10th  May  1817,  of  Byrnes  &  Co., 
four  drafts,  two  of  $'2000  each  and  two  of  $300  each,  making 
$4000 ;  which  when  paid  will  be  considered  as  such — deducting 
the  discount — the  drafts  at  forty-five  days. 

WM.  &  THOS.  POLLOCK." 

A  draft  was  also  given  by  Tyson  &  Co.,  for  the  amount  of  wheat 
which  that  firm  received  as  aforesaid,  on  W.  &  N.  Tyson,  of  Balti- 
more, dated  llth  May  1817,  at  forty-five  days,  in  favor  of  the 
plaintiffs,  for  $3635.87,  which  was  endorsed,  accepted  and  paid,  for 
which  a  receipt  was  given  by  the  plaintiffs  as  follows: 


May  1830.]  OF  PENNSYLVANIA.  377 

[Tyson  v.  Pollock.] 

"Columbia,  llth  May  1817. 

"  Received  of  Tyson  &  Co.  (mentioning  the  draft),  which,  when 
paid,  will  be  in  full  to  this  day  (the  discount  on  the  above  de- 
ducted). 

WILLIAM  &  THOMAS  POLLOCK." 

The  drafts  of  Byrnes  &  Co.  were  not  paid,  but  protested  and 
duly  tendered  to  the  defendants. 

The  mills  of  defendants  at  York  Haven  were  owned  separately, 
not  jointly,  one  by  Tyson  &  Co.,  the  other  by  Byrnes  &  Co. 

Barnitz,  for  the  plaintiff  in  error. — Although  the  original  con- 
tract may  have  been  joint,  yet  as  the  wheat  was  delivered  to  each 
firm  according  to  its  interest,  separate  settlements  made  and  sepa- 
rate drafts  taken  from  each,  it  was  executed  as  several  contracts, 
and  all  joint  liability  was  gone.  By  the  agreement,  the  wheat  was 
to  be  paid  for  on  delivery — the  drafts  were  a  payment.  Each  firm 
was  in  full  credit  and  perfectly  solvent  when  the  payments  should 
have  been  made ;  but  the  plaintiffs  taking  drafts  without  the  privity 
of  the  different  firms,  went  out  of  the  contract,  and  thus  jeopardized 
the  interests  of  the  defendants.  The  receipt  given,  "  which,  when 
paid,  will  be  in  full,"  meant  that  when  the  draft  was  paid,  it  would 
be  in  full  of  all  liability  of  the  drawers.  The  liability  on  the  ori- 
ginal contract  would  only  exist  while  the  contract  was  executory ; 
but  the  delivery  of  the  wheat  and  adopting  a  mode  of  payment 
which  separated  the  rights  of  the  defendants,  a  different  contract 
was  executed,  and  the  plaintiffs  have  their  recourse  only  upon  the 
mode  accepted  by  them  :  the  same  as  where  articles  of  agreement 
are  entered  into  for  the  sale  of  land,  and  afterwards  a  deed  is  made 
and  bonds  are  given  ;  the  liability  is  then  on  the  bonds.  Since  the 
case  of  Milliken  v.  Brown,  the  law  is  settled  that  where  a  receipt  is 
given  it  discharges  the  co-obligor,  and  a  release  under  seal  is  not 
required  to  produce  this  effect :  1  llawle  391. 

Leivis,  for  the  defendant  in  error. — The  money  was  to  be  paid 
on  the  delivery  of  the  wheat,  and  the  credit  given  was  for  the 
benefit  of  the  defendants,  and  not  of  the  plaintiff  Pollock.  The 
giving  of  the  drafts  alone  would  not  extinguish  the  contract,  but  by 
the  receipt  of  the  10th  of  May  1817  there  was  an  express  stipula- 
tion it  should  not  be  extinguished.  No  fair  inference  can  be  drawn 
from  the  receipt  to  Tyson  &  Co.,  "which,  when  paid,  will  be  in  full," 
that  a  new  contract  was  entered  into ;  on  the  contrary,  it  is  all  one 
transaction,  and  shows  the  agreement  was  that  the  plaintiff  would 
take  this  draft,  which,  with  the  drafts  taken  the  day  before,  would 
be  in  full.  The  drafts  and  receipts  refer  to  the  original  contract, 
and  the  receipts  show  that  the  drafts  were  not  taken  as  payment, 
but  refer  to  the  contract,  and  were  to  be  in  full  of  that,  and  not  of 
Tyson's  part. 


378  SUPREME  COURT  [Lancaster 

[Tyson  v.  Pollock.] 

There  is  a  difference  between  the  receipts  here  and  in  the  case  of 
Milliken  i'.  Brown,  1  Rawle  391.  There  the  receipt  was  in  full  of 
the  proportion  of  one  of  the  joint  debtors,  to  whom  it  was  given. 
This  court  cannot  infer  from  the  papers  an  intention  or  agreement 
to  discharge  one  of  the  parties  to  the  original  contract :  clear  proof 
of  such  fact  is  requisite.  The  inference  is  the  other  way,  for  the 
receipts  are  carefully  drawn  to  prevent  such  a  conclusion.  Taking 
a  security  of  the  same  grade,  or  as  collateral  to  a  contract,  is  no 
extinguishment. 

Durkee,  on  the  same  side. — This  contract  is  joint;  the  violence 
necessary  to  sever  it  must  destroy  it.  There  is  no  equity  in  the 
case,  the  defendants  being  all  principals  ;  moreover,  the  credit  given 
being  a  benefit  to  all,  is  no  ground  of  equitable  defence.  They  are 
all  a  firm,  and  extension  of  credit  to  any  one  of  them,  is  a  credit 
to  all.  It  cannot  be  pretended  that  where  one  partner  gives  his 
note  or  draft,  payable  at  a  future  day,  and  takes  a  receipt,  which, 
when  paid,  will  be  in  full,  that  that  extinguishes  the  debt  of  the 
firm,  because  time  was  given  during  which  suit  could  not  be  main- 
tained on  it.  In  case  of  sureties  it  might  be  so.  But  such  trans- 
action leaves  the  firm  and  every  member  liable  on  the  original 
contract,  which  they  have  neither  satisfied  in  law  nor  equity. 
Suppose,  instead  of  drafts,  counterfeit  money  had  been  given  by 
Byrnes  &  Co.  to  the  Pollocks,  and  the  next  day  Tyson  &  Co.  paid 
them  the  balance,  and  took  their  receipt  in  full,  could  it  be  pre- 
tended, upon  a  suit  brought  to  recover  the  amount  of  this  spurious 
money,  that  such  a  receipt,  or  had  it  been  a  release,  would  be  a 
defence  ?  It  is  true  that  where  one  of  two  joint  debtors  is  dis- 
charged by  the  obligor,  it  is  the  discharge  of  both ;  but  there  must 
be  an  intention  evidenced  by  the  discharge  to  produce  such  effect. 
The  transaction  with  Tyson  &  Co.  bears  no  resemblance  to  that 
with  Watson,  in  Milliken  v.  Brown,  1  Rawle  391.  Unless  the 
receipt  operates  to  discharge  Tyson,  his  defence  fails.  In  Milliken 
v.  Brown,  Watson  agrees  to  pay  $2000,  expressly  in  exoneration 
of  his  liability.  This  was  a  turning  point  in  the  cause,  and  is  of 
the  very  essence  of  it.  The  effect  of  this  agreement  was  to  dis- 
charge the  other  defendants,  and  this  was  not  affected  by  the  inten- 
tion of  the  plaintiff  to  hold  them  liable.  It  is  also  necessary  that 
the  defendants  should  establish  that  the  drafts  were  accepted  in 
satisfaction  of  the  part  of  Ty«on  &  Co. ;  this  is  not  done  by  the 
special  verdict,  and  therefore  cannot  be  inferred.  The  receipt 
should  say  in  so  many  words  that  the  drafts  were  so  taken,  or  it 
does  not  import  it. 

Buchanan,  in  reply. — There  can  be  no  doubt  of  the  import  of 
the  receipt  to  Tyson  &  Co. ;  fraud  or  mistake  is  not  pretended.  It 
is  a  receipt  in  full,  without  limitation,  and  manifests  the  intention, 


May  1830.]  OF  PENNSYLVANIA.  379 

[Tyson  ».  Pollock.  J 

upon  the  payment  of  the  amount  for  the  wheat  received  by  Tyson 
&  Co.,  to  discharge  them  from  all  liability.  In  the  case  of 
Milliken  v.  Brown,  the  execution  was  issued  upon  a  debt  due,  the 
receipt  was  taken  in  terms  not  so  strong  as  in  the  receipt  here,  and 
it  was  expressly  proved  that  there  was  no  intention  to  discharge 
Brown  ;  yet  the  law  discharged  him.  Here,  also,  it  is  not  a  per- 
son standing  in  the  relation  of  Watson,  but  the  party  himself  to 
whom  the  receipt  was  given  whilst  his  contract  was  executory. 

The  contract  in  its  inception  was  joint,  but  was  afterwards  severed 
by  the  parties,  as  is  conclusively  shown  by  the  receipt  to  Tyson  & 
Co.  In  the  same  manner  as  if  A.  and  B.  buy  six  horses  for  $GOO, 
and  their  vendor  takes  their  separates  notes  for  $300  each,  can  it 
be  supposed  that  in  the  event  of  the  failure  to  pay  by  one  of  the 
vendees  the  liability  of  the  other  on  the  original  contract  would 
remain. 

The  wheat  was  divided,  and  separate  receipts  taken  by  the  plain- 
tiffs, who  were  to  receive  their  pay  in  the  money  specified,  instead 
of  which  they  took  the  drafts  of  the  defendants.  The  several 
receipts  which  had  been  taken  for  the  wheat,  were  delivered  up  to 
the  defendants  respectively ;  they  were  the  only  evidence  to  charge 
them  under  this  contract.  The  credit  of  forty-five  days  to  Byrnes 
&  Co.  is  a  matter  Vith  which  Tyson  &  Co.  have  nothing  to  do;  it 
was  given  without  their  consent ;  they  therefore  very  properly  de- 
manded of  the  Pollocks  a  receipt  in  full  on  the  payment  of  their 
proportion.  A  severance  was  effected  by  the  plaintiffs  accepting 
negotiable  security  from  Byrnes  &  Co.  one  day  and  from  Tyson  & 
Co.  the  next,  and  the  intention  to  sever  is  evidenced  by  the  receipt  in 
full.  There  would  be  no  equity  or  justice  in  permitting  the  plain- 
tiffs after  giving  Byrnes  &  Co.  a  credit  of  forty-five  days,  in  which 
time  they  became  insolvent,  to  recur  to  the  original  contract  and 
revive  the  liability  of  Tyson  &  Co. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — That  the  purchase  was  originally  on  separate 
account,  has  not  been  pretended  at  the  bar.  It  was  made  by  &  part- 
nership constituted  not  of  individuals  but  of  firms,  and  limited  to 
the  acts  of  purchasing  only.  The  original  contract,  then,  being 
joint,  binds  both  firms,  unless  it  has  been  satisfied  or  severed  by 
substituting  their  several  for  their  joint  liability.  I  lay  out  of  tin- 
case,  as  a  matter  with  which  the  vendors  had  nothing  to  do,  the 
separate  receipt  by  each  firm  of  its  share  of  the  purchased  article  ; 
a  separation  of  their  interests  by  the  partners  themselves  being  con- 
sistent with  the  contract  of  sale  as  well  as  with  the  object  of  the 
partnership.  The  first  question  then  is,  whether  by  the  acceptance 
of  bills  drawn  by  each  of  the  partner  firms  at  York  Haven,  on  its 
parent  house  at  Baltimore,  the  joint  contract  was  merged  in  their 
separate  responsibility  ?  By  the  terms  of  the  sale  payment  was  to  be 


380  SUPREME  COURT  [Lancaster 

[Tyson  v.  Pollock.] 

made  at  the  delivery  of  the  article  or  on  demand  in  the  notes  of 
particular  banks  specified  in  the  memorandum.  At  the  time  of 
delivery  separate  receipts  were  given  to  the  vendors,  which  they 
afterwards  delivered  up  on  receiving  the  bills  on  Baltimore.  For 
these  bills  they  gave  to  Byrnes  &  Co.  a  written  acknowledgment 
of  payment  when  the  contents  should  be  received  ;  and  to  Tyson  & 
Co.  on  the  following  day  a  similar  acknowledgment  of  payment  in 
full  on  the  same  condition.  The  transaction,  therefore,  was  evi- 
dently a  mode  of  payment  by  the  partnership,  and  if  so  it  can  have 
no  more  effect  in  producing  a  severance  of  any  unsatisfied  joint 
responsibility  than  if  the  partnership  had  been  paid  in  the  bills  of 
any  third  persons  of  which  it  had  accidentally  become  the  holder. 
The  bills  of  Byrnes  &  Co.  can  by  no  fair  construction  be  considered 
as  anything  else  than  payment  pro  tanto  of  the  joint  debts  ;  and  the 
bills  of  Tyson  &  Co.  for  the  balance,  which  were  agreed  to  be  in 
full  when  they  should  be  paid,  clearly  shows  that  it  was  so  consid- 
ered by  the  parties  themselves.  The  difference  in  the  terms  of  the 
receipts  is  remarkable ;  and  I  am  unable  to  perceive  how  the  omis- 
sion to  specify  in  the  first  also  that  payments  of  the  bills  for  which 
it  was  given  should  be  in  full,  can  be  referred  to  anything  but  an 
understanding  that  it  should  be  in  part,  and  consequently  in  part 
of  the  joint  debt,  as  it  could  not  be  otherwise  than  in  full  if  made 
on  separate  account.  There  is,  therefore,  positive  evidence  on  the 
face  of  the  papers  that  no  severance  was  intended.  But  even  with- 
out this,  why  should  the  separate  acceptance  of  bills  from  each  of 
two  joint  debtors  dissolve  their  joint  liability  more  than  would  the 
separate  acceptance  of  counterfeit  bank  notes  or  coin  ?  All  that 
the  creditor  has  a  right  to  require  is  payment  in  fact,  for  whether 
joint  or  several  can  make  no  difference  to  him.  Each  partner  is 
separately  the  agent  of  all  the  others,  with  authority  to  pay  the 
whole  or  any  part  of  the  debts ;  and  payment  by  him  is  essentially 
payment  on  joint  account :  so  that  the  acceptance  of  securities  from 
the  individual  partner  does  not  necessarily  or  even  naturally  imply 
a  relinquishment  of  any  right  against  the  partnership.  Why  then 
should  the  creditor  be  prejudiced  in  his  relations  with  the  partner- 
ship by  having  accepted  what  he  had  no  right  to  refuse  ?  I  take  it 
the  responsibility  of  the  partnership  was  not  relinquished  by  it 
unless  the  naked  acceptance  of  the  bills  were  satisfaction  in  law, 
without  regard  to  the  question  of  severance  in  fact,  and  this  I  pro- 
ceed to  consider. 

In  relation  to  the  partnership  each  of  the  partner  firms  may  be 
treated  as  a  stranger  capable  of  dealing  with  it  in  the  character 
of  debtor  or  creditor ;  and  as  by  the  contract  of  sale,  the  wheat 
was  to  be  paid  for  in  the  notes  of  particular  banks  the  subsequent 
acceptance  of  bills  drawn  by  the  partner  firms  was  payment  in  the 
bills  of  a  stranger  of  a  precedent  debt.  On  no  other  hypothesis 
could  there  be  the  shadow  of  a  defence ;  for  as  one  simple  contract 


May  1830.]  OF  PENNSYLVANIA.  381 

[Tyson  v.  Pollock.] 

•will  not  merge  in  another,  it  has  invariably  been  held  that  the 
debtor's  own  bill  or  note  for  the  price  of  goods  sold,  will  not  extin- 
guish the  original  liability:  Ld.  Raym.  1430;  2  Stra.  1218; 
Willes  406.  It  merely  operates  as  an  extension  of  credit,  arid  pre- 
vents a  recurrence  to  the  original  contract  of  sale  before  the  bill  or 
note  has  come  to  maturity  :  1  Esp.  3.  We  have  then  payment  of 
a  precedent  debt  in  the  bills  of  a  third  person,  which  has  been  uni- 
versally held  since  Clark  u.  Munden,  1  Salk.  124,  not  to  be  abso- 
lute satisfaction,  although  it  is  otherwise  where  such  payment  has 
been  in  pursuance  of  the  original  bargain.  I  feel  no  disposition  to 
review  the  authorities,  but  1  may  safely  affirm  that  no  case  can  be 
found  in  which  any  other  doctrine  was  ever  held.  In  Sheely  v. 
Mandeville,  6  Crarich  264,  the  acceptance  of  a  bill  was  barely  held 
to  be  a  sufficient  consideration  for  an  agreement  to  discharge  the 
precedent  debt;  which,  when  dependent  on  facts  and  circumstances, 
is  a  subject  for  the  consideration  of  a  jury.  In  Arnold  v.  Camp,  12 
Johns.  R.  409,  acceptance  of  the  separate  note  of  one  of  the  part- 
ners, was  inferred  to  be  satisfaction  only  from  the  fact  that  the 
partnership  note  was  given  up,  a  circumstance  that  does  not  enter 
into  the  case  here.  There  are  in  fact  no  circumstances  to  take  it 
out  of  the  general  rule,  but  enough  to  rebut  a  legal  implication  of 
satisfaction,  even  were  the  rule  different.  It  would  be  decisive  in 
any  state  of  the  law,  that  the  parties  themselves  expressly  agreed 
to  take  the  bills  as  satisfaction  only  when  they  should  be  paid. 

In  this  aspect,  the  authority  of  Milliken  v.  Brown,  1  Rawle  391, 
makes  the  defendant's  case  neither  better  nor  worse.  If  by  the 
terms  of  the  receipt  given  to  Tyson  &  Co.  the  original  contract 
were  severed,  or  to  be  discharged  by  payment  of  that  bill  only, 
then  Tyson  &  Co.  would  be  exonerated,  both  jointly  and  separately, 
independently  of  the  rule  which  gives  one  joint  debtor  the  benefit 
of  a  release  intended  only  for  the  other;  and  although  the  conse- 
quences might  be  important  to  Byrnes  &  Co.,  they  could  not  add 
to  the  defence  of  Tyson  &  Co.  which  would  be  complete  of  itself. 
An  absolute  discharge  of  one  of  the  debtors,  is  a  postulate  of  the 
argument,  which  being  once  granted,  makes  an  end  of  the  question 
of  joint  liability,  without  regard  to  the  question  of  liability  by  the 
other  in  a  separate  action.  It  seems  to  me  that  neither  of  these 
firms  was  discharged  from  the  original  contract,  and  that  in  every 
point  of  view,  the  cause  is  with  the  plaintiff. 

SMITH,  J. — Admitting  the  contract  between  the  firm  of  Tyson 
&  Co.  and  Byrnes  &  Co.,  and  the  Messrs.  Pollocks,  to  be  joint, 
(which,  however,  might  be  doubted,  were  it  not  that  the  parties  had 
themselves  admitted  it  to  be  so),  it  does  appear  to  me,  that  b}-  the 
subsequent  acts  of  the  parties,  it  was  severed,  and  the  firm  of  Tyson 
&  Co.  discharged  from  the  performance  of  or  all  liability  on  the 
same.  The  wheat  was  divided  between  Tyson  &  Co.  and  Byrnes  & 


382  SUPREME  COURT  OF  PA.  [Lancaster 

[Tyeon  v.  Pollock.] 

Co.,  and  W.  and  T.  Pollock  accepted  on  the  llth  of  May  1817. 
from  Tyson  &  Co.  for  their  part  of  the  wheat,  a  draft  on  W.  &  N. 
Tyson,  of  Baltimore,  for  $3635.87,  and  receipted  for  the  same,  uas 
in  full  to  that  day."  At  maturity  the  draft  was  paid.  On  the 
day  before  (the  10th  of  May  1817),  the  plaintiffs  had  received 
four  drafts  from  Byrnes  &  Co.  on  Samuel  Byrnes  of  Baltimore,  for 
$4600  for  their  part  of  the  wheat,  which  last-mentioned  drafts  were 
not  paid.  About  five  years  and  more  after  all  this,  the  Messrs. 
Pollocks  bring  this  suit  to  recover  on  the  contract  of  the  5th  of 
April  1817  from  Tyson  &  Co.,  the  amount  of  the  drafts  received 
by  them  on  Samuel  Byrnes.  And  for  this  sum  and  interest, 
amounting  to  $6525,  tne  court  below  rendered  judgme/it,  being  for 
the  wheat  received  by  Byrnes  &  Co.,  and  of  which  Tyson  and  Co. 
did  not  receive  a  grain.  These  circumstances  go  to  show  that  the 
Messrs.  Pollocks  looked  to  each  firm,  for  the  amount  of  wheat 
received  by  them  respectively,  after  the  contract  had  been  made, 
and  discharged  them  from  the  original  joint  liability.  I  am,  there- 
fore, of  the  opinion  that  the  judgment  should  be  reversed.  A 
majority  of  this  court,  however,  are  of  -a  different  opinion,  and 
judgment  must  therefore  be  affirmed. 

Judgment  affirmed. 
Ross,  J.,  concurred  with  SMITH,  J. 

Commented  on  and  approved,  5  C.  452. 
Followed,  2  W.  122. 


May  1830.]  OF  PENNSYLVANIA. 


Sid  well  against  Evans  et  al. 

IN    ERROR. 

An  agreement  to  forbear  to  sue  for  a  reasonable  time,  is  a  consideration 
certain  enough  upon  which  to  sustain  an  action. 

A  judge  cannot  be  required  to  give  a  legal  construction  to  the  words  of 
a  witness,  and  say  whether  in  point  of  law  they  sustain  the  allegation  in 
point  of  fact.  , 

The  construction  of  written  evidence  is  for  the  court,  and  of  parol  evidence 
for  the  jury ;  and  an  admixture  of  parol  with  written  evidence  draws  the 
whole  to  the  jury. 

Whether  a  particular  cause  of  action  be  proper  for  a  statement,  or  whether 
the  statement  contains  any  cause  of  action,  or  whether  a  valid  consideration 
be  laid,  are  points  that  might  be  mooted  on  a  motion  in  arrest  of  judgment ; 
but  they  are  matters  with  which  the  jury  have  nothing  to  do. 

A  plaintiff  who  states  his  case  more  particularly  than  is  necessary,  is  not 
bound  to  the  strict  proof  of  circumstances,  merely  because  they  have  been 
unnecessarily  set  out. 

Municipal  law  is  a  matter  of  compact,  and  as  such  the  construction  of 
foreign  statutes,  as  in  the  case  of  any  other  written  compact,  belongs  to  the 
court ;  and  there  is  no  distinction  iii  this  respect  between  the  written  and 
unwritten  law. 

WHIT  of  error  to  the  District  Court  for  the  city  and  county  of 
Lancaster. 

In  the  court  below  Robert  and  James  Evans  were  plaintiffs,  and 
filed  the  following  statement,  which  contains  all  the  facts  of  the 
case : — 

"  That  Joseph  Sidwell  and  Levi  Sidwell,  brothers  of  the  said 
Jesse  Sidwell,  were  indebted  to  Robert  and  James  Evans,  assignees 
of  Abner  Reynolds  and  Lewis  Reynolds,  in  the  sum  of  $4100,  the 
payment  whereof  was  secured  by  a  mortgage,  and  ten  joint  and 
several  obligations,  bearing  date  the  21st  day  of  January  1817, 
being  part  of  the  consideration-money  of  a  tract  of  land  sold  by 
the  said  Abner  and  Lewis  Reynolds,  to  the  said  Joseph  and  Levi 
Sidwell,  which  said  mortgage  and  bonds  were  afterwards,  to  wit,  on 
the  2d  day  of  July  1817,  assigned  for  full  value  to  the  said  Robert 
and  James  Evans;  and  further,  that  the  said  Jesse  Sidwell,  after- 
wards, to  wit,  the  30th  day  of  May  1820,  purchased  part  of  said 
land  from  his  brother  Joseph  Sidwell,  and  at  the  same  time  executed 
a  bond  of  indemnity  to  his  said  brother  Joseph,  in  the  penalty  of 
$6000,  conditioned,  that  he,  Jesse  Sidwell,  would  assume  and  take 
upon  himself  the  payment  of  the  said  mortgage  and  bonds,  and 
indemnify  and  keep  harmless  the  said  Joseph  from  the  payment 
thereof;  and  further  that  afterwards,  to  wit,  on  or  about  the  20th 
day  of  September,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  twenty-two,  at  the  city  and  county  of  Lancaster,  in  a 


SUPREME  COURT  [Lancaster 

[Sidwell  r.  Evans.] 

conversation  then  and  there  hail  and  held,  between  the  said  Robert 
and  James  Evans  and  the  said  Jesse  Sidwell,  of  and  concerning  the 
said  mortgage  and  bonds,  so  as  aforesaid  given  for  the  purchase- 
money  of  the  said  land,  he,  the  said  Jesse  Sidwell,  then  and  there 
said,  that  he  considered  himself  as  stepping  into  Joseph  Sidwell's 
shoes,  and  that  he  considered  himself  equally  bound  as  he,  Joseph, 
had  been,  for  the  payment  of  the  said  money ;  and  then  and  there, 
in  consideration  of  the  premises,  to  wit,  that  he  had  stepped  into 
Joseph's  place,  assumed  payment,  and  promised  to  keep  him  harm- 
less ;  and,  also,  in  consideration  that  the  said  Robert  and  James 
Evans  would  wait  a  while,  and  give  reasonable  time  to  him,  the 
said  Jesse,  and  forbear  to  sue  the  said  Joseph  and  Levi  Sidwell,  for 
the  said  sums  of  money,  so  as  aforesaid  secured  by  the  said  mort- 
gage and  bonds,  he,  the  said  Jesse  Sidwell,  at  his  own  special  in- 
stance, undertook  and  then  and  there  promised  to  pay  to  the  said 
Robert  and  James  Evans,  the  said  $4100. 

"  And  the  said  Robert  and  James-  aver,  that  they  did  wait  and 
give  reasonable  time  to  the  said  Jesse,  and  forbear  to  sue  the  said 
Joseph  and  Levi  for  the  said  money,  upon  the  verbal  promise  and 
undertaking  of  said  Jesse,  made  and  accepted  as  aforesaid,  and  of 
which  he  had  notice. 

"  And  the  said  Robert  and  James  further  say,  that  they  re- 
peatedly offered,  and  are  still  ready  and  willing  to  transfer  the  said 
mortgage  and  bonds  to  the  said  Jesse,  on  his  paying  the  said  money, 
and  that  they  have  repeatedly  requested  him  to  pay,  which  he  refused 
and  still  refuses  to  do ;  the  plaintiffs  therefore  claim  of  him,  on  his 
said  verbal  promise,  the  said  debt  of  $4100,  and  interest  thereon, 
from  the  said  20th  of  September  1822,  as  justly  due  them." 

The  only  evidence  to  support  the  promise,  as  stated,  is  contained 
in  the  deposition  of  William  Brown,  of  which  the  following  is  the 
material  part : — 

"  In  1821  or  1822,  I  was  at  Lancaster,  in  the  store  of  Robert  and 
James  Evans,  they  were  talking  with  Jesse  Sidwell  about  paying 
for  the  land  Abner  and  Lewis  Reynolds  sold  Levi  and  Joseph  Sid- 
well, he  (Jesse  Sidwell),  said  he  had  bought  out  Joseph's  share  of 
the  land  and  that  he  considered  himself  as  stepping  into  Joseph's 
shoes,  and  that  he  considered  himself  equally  bound  as  he  had  been 
for  the  payment  of  the  money,  and  if  they  would  wait  a  while  and 
not  push  his  brother  Levi,  he  would  pay  them  honestly ;  both  of 
the  Evans'  were  there,  they  were  talking  of  lands  sold  by  Abner 
and  Lewis  Reynolds  to  Levi  and  Joseph  Sidwell.  I  understood  by 
Jesse  Sidwell's  talk,  he  had  bought  a  part  of  the  land,  or  rather 
Joseph's  undivided  part." 

Exceptions  were  taken  to  the  opinion  of  the  court,  in  answer  to 
several  points  put  by  the  defendant's  counsel,  and  which  were  as- 
signed here  as  error,  and  which  sufficiently  appear  in  the  opinion 
of  the  court. 


May  1830.]  OF  PENNSYLVANIA.  385 

[Sidwell  v.  Evans.] 
Rogers  and  J.  Hopkins,  for  plaintiff  in  error. 

Buchanan  and  Jenkins,  for  defendants  in  error. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  mischief  produced  by  the  want1  of  a  provis- 
ion in  our  Act  of  Assembly  similar  to  that  in  the  Statute  of  Frauds, 
by  which  a  parol  promise  to  pay  the  debt  of  another  is  void,  has  in- 
duced the  courts  to  lean  against  a  recovery  wherever  the  precise 
terms  of  the  promise  are  not  explicitly  shown  by  clear  and  satisfac- 
tory proof;  and  were  this  case  before  us  on  a  motion  for  a  new  trial, 
I  would  readily  agree  to  send  it  to  another  jury.  But  on  a  bill  of 
exceptions  where  we  have  no  right  to  judge  of  the  quantum  of  the 
proof,  tmr  business  is  not  to  correct  the  errors  of  the  jury,  and  make 
a  bad  precedent,  because  the  case  is  a  hard  one.  Did  the  judge 
plainly  misdirect  the  jury,  or  omit  any  proper  direction  which  he 
was  desired  to  give  ?  The  defendant  requested  him  to  charge  "  that 
the  deposition  of  William  Brown,  given  in  evidence  by  the  plain- 
tiffs, contains  no  cause  of  action  ;  and  that,  as  that  is  the  only  evi- 
dence of  any  cause  of  action  on  the  part  of  the  plaintiffs,  they  can- 
riot  recover,"  and  this  was  declined. 

On  this  part  of  the  case  only  have  I  entertained  a  doubt.  The 
witness  testified  that  the  defendant  in  conversation  with  the  plain- 
tiffs, agreed  that  "if  they  would  wait  a  while,  and  not  push  his 
brother  Levi,  he  would  pay  them  honestly."  Undoubtedly,  to  wait 
a  while,  and  not  push  Levi,  were  both  efficient  causes  of  the  prom- 
ise ;  and  neither  being  idle  or  frivolous,  the  insufficiency  of  either 
as  a  separate  consideration  would  be  fatal.  It  is  well  settled  that 
a  general  forbearance  is  to  be  intended  a  perpetual  forbearance ; 
but  how  far  a  forbearance  not  perpetual,  but  for  an  unspecified  time 
is  a  valid  consideration,  is  not  so  clear.  It  seems  to  be  agreed, 
there  must  be  a  substantial  suspension  of  the  right  to  sue  ;  and 
therefore  an  agreement  to  forbear  per  breve  ;  or  pauluhtm  temp-its  ; 
or  pro  aliquo  parvo  tempore  ;  or  even  pro  aliquo  tempore  ;  which 
resembles  the  case  at  bar,  is  insufficient,  because  such  an  agreement 
is  so  uncertain  in  its  terms  as  not  to  stand  in  the  way  of  a  suit  the 
next  moment :  1  Com.  Dig.  196.  But  in  all  these  instances  the  ques- 
tion stood  on  the  pleadings,  and  the  extent  and  meaning  of  the 
words  were  to  be  determined  by  the  court ;  here  they  wore  for  the 
jury.  Forbearance  for  a  reasonable  time  is  clearly  certain  enough  ; 
and  being  so  laid,  it  is  said  the  judge  at  Nisi  Prius  shall  be  judge 
of  that,  or  leave  it  to  the  jury  on  the  circumstances.  (Id.)  Take 
it,  then,  that  the  plaintiff  had  so  laid  his  case  in  a  declaration  (and 
the  mode  of  pleading  directed  by  the  legislature  will  surely  not  affect 
the  case  as  it  stands  on  the  evidence),  could  the  judge  have  been. 

1  See  26  April  1855,  $  1,  P.  L.  303. 
1  P.  &  W.— 25 


380  SUPREME  COURT  [Lancaster 

[Sidwell  v.  Evans.] 

required  to  give  a  legal  construction  to  the  words  of  the  witness  as 
if  they  stood  in  a  deed  or  a  will,  and  say  whether  in  point  of  law 
they  sustained  the  allegation  in  point  of  fact  ?  That  the  construc- 
tion of  written  evidence  is  for  the  court,  and  of  parol  evidence  for 
the  jury — and  that  an  admixture  of  parol  with  written  evidence 
draws  the  whole  to  the  jury,  are  principles  which  appear  every- 
where in  our  books ;  particularly  in  Welsh  v.  Dusar,  3  Binn.  377  ; 
Denison  v.  Wertz,  7  S.  &  R.  372 ;  Moore  v.  Miller,  4  Id.  279 ; 
Watson  v.  Elaine,  12  Id.  131 ;  Overton  v.  Tracey,  14  Id.  311 ; 
Brown  v.  Campbell,  1  Id.  176.  A  judge  is  not  bound  to  give  an 
opinion  on  facts ;  or  to  say  what  the  law  is  on  the  whole  evidence ; 
he  may  advise,  but  if  he  directs  the  jury  to  find  in  a  particular  way, 
it  is  error:  Galbraith  v.  Black,  4  S.  &  R.  240;  White  v.  Kyle,  1 
Id.  515 ;  Jones  v.  Wildes,  8  Id.  150.  In  Sampson  v.  Sampson, 
4  Id.  329,  which  would  be  in  principle  the  case  at  bar,  the 
judgment  was  reversed  because  the  judge  concluded  by  saying 
that  the  evidence  was  "  very  loose — too  loose  to  entitle  the  plaintiff 
to  a  verdict."  I  am  aware  that  the  propriety  of  this  decision  has 
been  doubted  by  the  profession ;  not  however  because  a  binding  direc- 
tion on  a  question  of  fact,  is  not  error  (for  no  lawyer  ever  doubted 
that),  but  because  it  has  been  thought  that  nothing  in  the  expressions 
of  the  judge  ought  to  have  induced  a  suspicion  that  he  meant  to  take 
the  cause  from  the  jury.  It  is  clear,  therefore,  not  only  that  the  judge 
was  not  only  free  to  decline  the  directions  prayed  for  here,  but 
bound  not  to  give  it.  The  meaning  of  the  parties  as  expressed  by 
themselves  and  detailed  by  the  witness,  was  exclusively  for  the 
jury,  who  alone  are  competent,  in  legal  estimation,  to  the  construc- 
tion of  words  spoken;  and  perhaps  there  was  enough  even  in  point 
of  reason  to  warrant  the  verdict.  But  it  is  said  there  is  positive 
error  in  the  direction  obtained  by  the  plaintiffs,  that  "  the  jury 
must  decide  from  the  testimony  in  the  cause.  If  they  believe  from 
that  testimony  that  the  defendant  agreed  for  the  consideration  set 
forth  in  his  statement,  to  pay  the  whole  amount  of  the  mortgage, 
being  the  sum  of  $4100,  ^  ^e  plaintiffs  have  alleged,  then  such 
agreement  constituted  a  valid  contract;  and  if  the  plaintiffs  have 
performed  the  consideration,  they  are  entitled  to  recover  the 
amount;  otherwise  not."  Who  can  doubt  it?  The  direction  is 
in  guarded  conformity  to  the  rights  of  the  jury  over  the  facts. 
But  it  is  said  that  it  was  so  ambiguous  as  to  authorize  a  verdict 
for  the  amount  of  the  mortgage,  although  all  the  instalments  were 
not  due  when  suit  was  brought.  But  the  propriety  of  such  a  ver- 
dict would  depend  on  the  terms  of  the  promise,  which  might  be 
to  pay  even  before  the  original  debt  should  be  due.  But  taking  for 
granted  that  the  judge  might  have  directed  the  contrary  as  matter 
of  law,  was  he  bound  to  go  beyond  the  proposition  submitted,  and 
present  the  case  in  every  aspect  of  which  it  was  susceptible  on  the 
evidence?  If  such  were  the  rule,  no  judgment  would  ever  be 
affirmed;  for  there  are  few  judges,  in  courts  of  error,  whose  inge- 


May  1830.]  OF  PENNSYLVANIA.  387 

[Sidwell  v.  Evans.] 

nuity  would  not  suggest  something  in  addition,  that  might  have 
been  appropriately  said.  It  has,  however,  been  determined  by  this 
court,  when  its  vision  in  the  inspection  of  error  was  certainly  not 
dull,  that  a  judgment  is  not  to  be  reversed  because  the  judge  has 
not  made  all  the  remarks  of  which  the  nature  of  the  case  may 
admit :  Lilly  v.  Paschal,  2  S.  £  11.  394.  But  the  truth  is,  that 
although  the  judge  might  have  advised  a  verdict  for  no  more  than 
the  amount  of  the  instalments  due,  or  for  the  defendant  generally, 
it  would  have  been  error  to  direct  it ;  the  terms  of  the  promise,  as 
well  as  performance  of  the  consideration,  presenting  questions 
which  were  purely  for  the  jury. 

Whether  this  particular  cause  of  action  be  proper  for  a  state- 
ment, or  whether  the  statement  contains  any  cause  of  action,  or 
whether  a  valid  consideration  were  laid,  are  points  that  might  be 
mooted  on  a  motion  in  arrest  of  judgment,  but  they  are  obviously 
matters  with  which  the  jury  had  nothing  to  do. 

If  a  plaintiff  having  stated  his  case  more  particularly  than  was 
necessary,  is  bound  to  prove  it  strictly  as  stated,  the  legislature  has 
attempted  in  vain  to  guard  against  the  common-law  mischief  of 
variance  between  the  allegata  and  the  probata,  for  which  many  a 
meritorious  plaintiff  was  turned  out  of  court.  The  statement  act 
which  was  produced  by  the  inconvenience  of  strict  pleading  has 
always  been  liberally  construed  in  suppression  of  the  mischief  and 
advancement  of  the  remedy,  as  in  Boyd  v.  Gordon,  6  S.  &  R.  53, 
and  Riddle  v.  Stevens,  2  Id.  537,  where  an  averment  of  perform- 
ance of  previous  conditions  was  held  to  be  unnecssary.  Little 
would  be  gained  if  a  party  were  held  to  strict  proof  of  circum- 
stances, merely  because  they  had  been  unnecessarily  set  out.  Even 
at  the  common  law,  an  immaterial  averment,  which  may  be  sep- 
arated from  the  principal  fact  without  prejudice  to  the  cause  of 
action,  while  a  sufficient  allegation  is  still  left,  requires  no  proof: 
Starkie's  Ev.  pt.  IV.  347-8-9.  Here  in  addition  to  the  date  of  the 
promise  and  the  amount  claimed,  which  is  all  the  act  requires,  the 
plaintiff  set  forth  his  supplementary  statement,  various  unnecessary 
details  which  may  be  struck  out  leaving  a  distinct  substantive  cause 
of  action ;  and  as  the  averments  about  the  mortgage  were  imma- 
terial they  might,  consistently  with  the  nicest  principles  of  the 
common  law,  be  disregarded.  But  there  was  another  statement 
filed,  in  which  these  unnecessary  details  were  omitted :  and  why 
might  not  the  plaintiffs  recover  on  that,  as  on  a  particular  count  in 
a  declaration  ?  It  was  not  withdrawn  when  the  second  was  filed, 
and  the  plea  expressly  put  it  in  issue :  why,  therefore,  shall  not 
the  second  be  considered  only  as  an  additional  count?  If  a  plain- 
tiff may  not  state  his  case  in  several  ways  to  give  him  the  bem-tit 
of  the  chances  afforded  by  the  evidence,  and  is  nevertheless  to  be 
held  to  the  strictness  of  the  common-law  proof,  his  condition  is 
worse  than  it  was  before  the  legislature  interfered  to  protect  him. 


388  SUPREME  COURT  [Lancaster 

[Sldwell  v.  Evans.  J 

A  promise  in  consideration  of  forbearance  is  undoubtedly  not 
binding,  if  there  were  originally  no  cause  of  action.  But  as  the 
plaintiffs  were  entitled  to  sue  the  Messrs.  Sidwells  as  assignees  of 
their  bonds  to  the  Messrs.  Reynolds,  there  was  a  sufficient  liability, 
independent  of  the  assignment  of  the  mortgage,  which,  however, 
being  proved  at  common  law,  might  well  go  to  the  jury  for  what  it 
was  worth.  The  defendant  will,  at  all  events,  have  the  benefit  of 
it  as  a  security,  as  amply,  as  it  could  be  enjoyed  by  the  plaintiffs 
or  the  Messrs.  Reynolds,  whom  the  Court  of  Chancery  in  Mary- 
land would  doubtless  compel  to  assign  to  him,  if  the  assignments  to 
the  plaintiffs  were  invalid.  I  mention  this  part  of  the  case  for  the 
opportunity  which  it  presents  (the  point  having  been  incidentally 
mentioned  in  the  argument),  of  correcting  an  error  into  which 
I  fell,  in  Mulliken  v.  Aughinbaugh,  ante,  125,  by  asserting  that 
the  construction,  as  well  as  the  existence  of  foreign  laws,  is  for 
a  jury  and  not  for  the  court.  Municipal  law  is  a  matter  of  com- 
pact, and  as  such,  the  construction  of  foreign  statutes,  as  in  the 
case  of  any  other  written  compact,  belongs  to  the  court.  A 
plausible  distinction  might  be  taken  in  this  respect,  between  the 
written  and  the  unwritten  law,  which  necessarily  rests  on  parol ; 
but  it  seems  to  have  been  disregarded  in  Mogstou  v.  Fabrigas, 
Cowp.  174  ;  Dougherty  v.  Snvder,  15  S.  &  R.  86 ;  Consequa  v. 
Willing,  1  Peters  C.  C.  R.  225 ;  Robinson  v.  Clifford,  1  Wash.  C. 
C.  R.  1,  and  Setons  v.  Delaware  Insurance  Co.,  Id.  175,  a  weight 
of  authority  more  than  sufficient  to  bear  down  any  argument  that 
could  be  raised  on  a  mere  theoretic  foundation. 

The  remaining  point  which  regards  the  supposed  recovery  of 
more  than  was  due  at  the  institution  of  the  suit,  is  already  disposed 
of.  The  sum  to  be  recovered  depended  on  the  nature  6f  the  pro- 
mise which  was  to  be  ascertained  by  the  jury.  If  there  was  any 
legal  impediment  to  a  recovery  of  the  whole,  it  was  the  business  of 
the  defendaut  to  point  it  out  and  desire  the  benefit  of  it,  instead 
of  which  he  put  the  whole  to  the  court  as  an  unmixed  matter  of 
law.  The  terms  of  the  promise  are  undoubtedly  so  uncertain  and 
imperfectly  stated  by  the  witness,  as  to  render  a  recovery  on  it 
exceedingly  dangerous ;  but  having  discretion,  we  cannot  reverse 
for  an  insufficiency  of  the  evidence,  and  we  discern  no  misdirection 
in  point  of  law. 

Judgment  affirmed. 

ROGERS,  J.,  dissented. 

HUSTON*  and  SMITH,  Justices,  not  having  heard  the  argument, 
gave  no  opinion. 

Referred  to,  6  W.  324;  9  Barr  147;  12  II.  446;  5  C.  160,  164;  7  Id.  257. 

Distinguished  3  P.  &,  W.  415. 

Followed,  4  W.  409 ;  5  W.  33  ;  9  W.  59. 

This  case  is  probably  the  one  referred  to,  9  W.  <fc  S.  53,  as  1  P.  &  W.  185. 


CASES 

IN 

THE   SUPREME   COURT 

OF 

PENNSYLVANIA. 


MIDDLE  DISTRICT— JUNE  TERM  1830. 


Ingham  against  Crary  et  al. 

A  parol  gift  of  a  lot  of  ground  by  a  father  to  his  married  daughter,  accom- 
panied by  possession  and  valuable  improvements  made  by  the  husband  at  his 
own  expense,  vests  in  him  no  estate  in  addition  to  the  freehold  which  the 
law  allows  him  in  right  of  his  wife. 

It  is  competent  to  give  evidence  of  what  was  said  previously  to  the  execu- 
tion of  a  deed,  in  order  to  establish  the  fact  that  the  grantee  received  the 
deed  in  trust  for  another. 

A  certified  copy  of  the  docket  entry  of  a  suit  cannot  be  received  to  estab- 
lish the  existence  of  a  former  suit  pending  for  the  same  cause  ;  and  if  received 
the  error  will  not  be  cured  by  the  instruction  of  the  court  in  their  charge  to 
the  jury  to  disregard  it. 

WRIT  of  error  to  the  Common  Pleas  of  Luzerne  county. 

This  was  an  action  of  ejectment  brought  by  Joseph  Ingham  in 
his  lifetime,  against  Mason  Crary,  for  a  house  and  lot  in  the 
borough  of  Wilkesbarre.  Nathan  Beach  was,  on  motion,  admitted 
to  be  a  co-defendant,  being  the  landlord  of  Mason  Crary. 

The  evidence  of  the  plaintiff's  title  was  29th  May  180.5,  patent 
to  Jesse  Fell,  for  five  acres  and  one  hundred  and  fifty-ooe  perches, 
including  the  lot  in  dispute:  3d  August  1805.  deed,  Jesse  Fell  and 
wife  to  Jonas  Ingham,  for  the  lot  in  dispute;  10th  July  1811),  deed. 
Jonas  Ingham  to  Charles  Kinsey ;  (>th  September  1821,  deed, 
Charles  Kinsey  to  Joseph  Ingham. 

Ethan  Baldwin,  Esq.,  was  then  called  as  a  witness  by  the  plain- 
tiff, to  testify,  that  an  erasure,  which  appeared  in  the  deed  of  19th 
July  1819,  of  Ingham  to  Kinsey,  was  made  before  its  execution  ; 
and  upon  his  cross-examination,  said,  in  substance,  that  that  deed 
was  made  for  the  purpose  of  giving  to  Charles  Kinsey,  who  was 
then  a  citizen  of  New  Jersey,  color  of  title  to  the  lot  in  dispute,  so 
as  to  enable  him  to  maintain  an  ejectment  in  the  Circuit  Court  of 

(389) 


390  SUPREME  COURT  [Sunfary 

[Ingham  v.  Crary.] 

the  United  States.  The  defendants  then  proposed  to  ask  the  wit- 
ness whether  he  did  not  then  receive  directions  to  bring  a  suit  in 
that  court,  and  what  he  did  in  pursuance  of  those  directions.  To 
which  the  plaintiff  objected,  and  they  could  not  prove  the  existence 
of  a  suit  by  parol ;  the  court  overruled  the  objection,  and  sealed  a 
bill  of  exceptions  at  the  request  of  the  plaintiff. 

The  witness  then,  in  substance  said,  that  he  had  brought  an 
ejectment  in  the  Circuit  Court  in  the  name  of  Charles  Kinsey,  for 
the  lot  in  controversy. 

The  defendants  then  offered  in  evidence,  a  certified  copy  of  the 
"docket  entries"  of  the  suit  brought  in  the  Circuit  Court  of  the 
United  States,  for  the  same  lot,  to  October  session  1819.  To  which 
the  plaintiff  objected,  that  it  did  not  purport  to  be  an  entire  copy 
of  the  record.  The  objection  was  overruled  and  the  paper  admitted, 
to  which  the  plaintiff  excepted. 

The  defendants  then  offered  and  stated  the  testimony  of  Jesse 
Fell,  to  which  the  plaintiff  objected,  but  the  court  admitted  the  evi- 
dence, and  sealed  a  bill  at  the  request  of  plaintiff. 

The  witness  then  said:  "Mrs.  Ingham,  the  wife  of  Jonas  Ingham, 
about  1804,  called  on  me,  and  said  that  she  had  a  legacy  left  her, 
which  she  wished  to  lay  out  for  her  daughter,  Mrs.  Perry,  and 
applied  to  me  to  buy  the  lot  in  dispute.  We  agreed  upon  the  price, 
200/.,  and  the  deed  was  to  be  made  whenever  a  release  of  the  lot 
could  be  obtained  from  a  certain  mortgage  upon  it  and  other  lots. 
The  release  was  obtained.  Jonas  Ingham  was  not  present  when 
the  agreement  was  made  with  Mrs.  Ingram ;  but  he  and  I  executed 
the  agreement  some  time  afterwards,  according  to  the  terms  which 
she  and  I  made.  It  was  to  be  purchased  for  Mrs.  Perry.  The 
purchase-money  was  paid  with  the  money  of  Mrs.  Ingham,  by  the 
hand  of  Benjamin  Perry,  the  husband  of  Mrs.  Perry.  I  had 
expected  the  deed  was  to  be  made  to  Mr.  Perry  or  his  wife.  Jonas 
Ingham  brought  to  me  the  release  from  the  mortgage;  I  then  asked 
him  in  whose  name  the  deed  was  to  be  made,  he  said  in  his  own 
name ;  he  did  not  say  then  it  was  for  Mrs.  Perry,  but  he  did  say 
that  Perry  was  trading  pretty  largely,  and  he  did  not?  know  how 
things  might  turn  out,  or  something  to  this  effect.  Perry  had  his 
goods  in  the  shop  on  the  lot  when  the  deed  was  made  by  me  to 
Jonas  Ingham  ;  he  then  made  a  kitchen  of  the  shop  and  built  the 
house  which  is  now  on  the  lot ;  I  cannot  say  whose  money  he  built 
it  with.  Jonas  Ingham  and  his  family  were  down  while  Perry  was 
building."  Being  cross-examined,  he  said,  "  It  seems  to  me  that 
both  Mr.  and  Mrs.  Ingham  were  present  when  the  deed  was  exe- 
cuted. I  do  not  know  that  I  ever  heard  Ingham  say  that  it  was 
for  his  daughter,  or  where  the  money  was  to  come  from.  Perry 
lived  in  the  house  on  the  lot,  about  ten  years  after  it  was  bought; 
he  lived  there  until  it  was  sold  by  the  sheriff  as  his  property,  to 
Beach,  and  afterwards  for  some  time." 


June  1830.]  OF  PENNSYLVANIA.  391 

[Ingham  ».  Crary.] 

Other  testimony  was  then  given  by  the  defendants,  which  was 
in  substance,  that  in  1807,  Perry  built  the  house  on  the  lot  now  in 
dispute;  that  it  cost  from  $1500  to  $3000.  They  then  exhibited 
the  record  of  two  judgments  against  Perry ;  the  first  for  about 
$2000,  and  the  other  for  about  $2500 — both  of  which  Beach  had 
paid  in  consequence  of  a  liability  so  to  do,  and  the  judgments  were 
assigned  to  him.  On  the  first  judgment  a  fi.  fa.  issued,  which  was 
levied  on  this  house  and  lot,  which  was  condemned,  arid  subse- 
quently sold  by  the  sheriff  to  Nathan  Beach,  the  defendant,  for 
$1481.  Sheriff's  deed  dated  3d  April  1813. 

The  plaintiff  then  gave  in  evidence  the  deed  of  release,  before 
spoken  of,  of  this  lot  from  the  mortgage,  which  was  to  Jonas  Ing- 
ham  ;  and  the  receipt  for  the  consideration  by  the  releasor  was 
'"received  of  J.  Ingham,  per  Benj'n  Perry,"  &c. 

The  court  (Scott,  president,)  charged  the  jury  as  follows: 

"  The  certificate  of  the  clerk  of  the  Circuit  Court  of  the  United 
States  produced  in  evidence  on  the  part  of  the  defendants  was  not 
evidence  of  the  pendency  of  a  suit  for  the  lot  in  question  in  that 
court  at  the  time  this  suit  was  instituted. 

"  The  plaintiff  on  his  part  has  shown  a  legal  title  to  the  land  in 
question  ;  but  the  defendants  resist  a  recovery,  and  claim  title  under 
Benjamin  Perry,  as  whose  property  the  lot  was  sold,  and  who, 
they  allege,  was  the  equitable  owner.  If  the  jury  believe  from  the 
evidence  that  the  land  in  question  was  a  gift  to  Perry,  by  Jonas 
Ingham  the  father  of  Perry's  wife  ;  that  Perry  was  in  possession 
at  the  time,  or  went  into  possession  in  pursuance  of  such  gift,  and 
made  valuable  improvements  thereon,  and  continued  in  possession 
up  to  and  after  the  sale  to  Beach,  the  defendants  cannot  now  be 
disturbed  ;  their  title  must  prevail.  It  has  long  since  been  settled 
in  Pennsylvania,  that  a  gift  of  land,  accompanied  by  possession,  and 
by  the  donees  making  valuable  improvemente  thereon,  was  valid. 
As  to  notice  of  Perry's  equitable  title,  the  law  is,  that  one  who  pur- 
chases a  legal  estate,  without  notice  of  an  equitable  interest,  takes 
it  discharged  of  the  equity.  Notice  of  an  equitable  title  may  be 
actual  or  legal ;  actual  notice  is  where  notice  in  fact  has  boon 
given  ;  legal  notice  is  where  from  circumstances  there  is  a  violent 
presumption  of  actual  notice.  A  clear,  unequivocal  and  undis- 
turbed possession  by  the  equitable  owner,  is  notice  to  all  the  world 
of  his  claim.  A  judgment  against  the  equitable  owner,  whilsi  so  in 
possession,  a  fi.  fa.,  levy,  condemnation  and  sale  thereon,  and  the 
sheriff's  deed  and  acknowledgment  thereof  to  the  purchaser,  amounts 
to  legal  notice." 

To  which  opinion  the  plaintiff's  counsel  excepted,  and  the  court 
sealed  a  bill. 

Conyngham  and  Willetson,  for  plaintiff  in  error. — The  evidence 
contained  in  the  first  bill  of  exceptions  was,  in  substance,  par,.l 


392  SUPREME  COURT  [Sunbury 

[Ingham  r.  Crary.] 

proof  of  the  existence  of  a  record  which  was  error :  Vanhorn  v. 
Frick,  3  S.  &  R.  282.  It  was  not  the  best  evidence  of  the  fact ; 
the  record  itself  was  better. 

Second  bill.  The  docket-entries  of  the  suit  in  the  Circuit  Court 
were  but  a  part  of  the  record.  The  record  does  not  purport  to  be 
entire,  the  admission  of  which  in  evidence  was  clearly  error :  Vin- 
cent v.  Huff,  4  S.  &  R.  300 ;  2  Saund.  Plead,  and  Ev.  17  ;  Whart. 
Dig.  223,  Nos.  13,  14;  Edmiston  v.  Schwartz,  13  S.  &  R.  135; 
Christine  v.  Whitehill,  16  Id.  106 ;  Ferguson  v.  Harwood,  7 
Cranch  410. 

When  illegal  evidence  is  admitted  the  error  will  not  be  cured  by 
the  direction  of  the  court  to  the  jury  to  disregard  it :  Shaeffer  v. 
Kreitzer,  6  Binn.  430 ;  Nash  v.  Gilkeson,  5  S.  &  R.  352. 

Third  bill.  The  declarations  of  a  wife  should  not  be  received  in 
evidence  to  affect  the  rights  of  her  husband :  1  Phil.  Ev.  64 ;  1 
Bac.  Ab.  497,  tit.  Bti,ron  and  Feme;  Webster  v.  McGennis,  5 
Binn.  235.  But  the  evidence  should  not  have  been  received  for 
another  reason  ;  that  all  previous  conversations  and  bargainings  on 
the  subject  were  consummated  by  and  merged  in  the  deed :  Cozens 
v.  Stevenson,  5  S.  &  R.  422 ;  Heagy  v.  Umberger,  10  Id.  342 ; 
Christine  v.  Whitehill,  16  Id.  106 ;  Collam  v.  Mocker,  1  Rawle 
108 ;  Me  Williams  v.  Martin,  12  S.  &  R.  269  ;  Whart.  Dig.  580, 
No.  10 ;  Brown  v.  Dysinger,  1  Rawle  412. 

The  court  assumed  the  fact  of  a  parol  gift  by  Ingham  to  his  son- 
in-law,  or  to  his  daughter,  which  there  was  no  evidence  to  support. 
He  never  intended  to  give  the  lot  to  Perry,  and  the  charge  of  the 
court  should  have  been  to  this  effect :  Meth.  Epis.  Church  v.  Jaques, 
1  Johns.  Ch.  450 ;  Lancaster  v.  Dolan,  1  Rawle  231. 

The  purchaser  of  a  legal  title  is  not  affected  by  an  equity  of  which 
he  has  not  direct,  express  and  positive  notice :  Scott  v.  Gallagher, 
14  S.  &  R.  333. 

Mallary  and  G-reenough,  for  defendant  in  error. — The  parol  evi- 
dence mentioned  in  the  first  bill  of  exceptions  was  not  offered  for 
the  purpose  of  proving  the  existence  of  a  suit  in  the  Circuit  Court, 
but  to  show  the  real  transaction  with  Kinsey,  and  that  he  had  no 
real  interest  in  the  title,  which  was  made  to  him  mala  fide,  as  a  citi- 
zen of  another  state,  in  order  to  give  jurisdiction  to  that  court ; 
and  this,  to  meet  the  allegation  of  the  plaintiff,  that  he  was  an 
innocent  purchaser  of  the  legal  title  without  notice  of  the  equity  of 
Perry. 

The  record  does  not  show  the  object  for  which  the  copy  of  the 
docket-entries  was  offered ;  if  therefore  it  was  competent  for  any 
purpose,  there  is  no  error  in  its  admission.  It  was  offered  and 
received  in  the  midst  of  the  testimony  of  the  witness,  who  detailed 
the  facts  in  relation  to  the  execution  and  delivery  of  the  deed  to 
Kinsey,  and  while  the  witness  was  speaking  of  the  object  for 


June  1830.]  OF  PENNSYLVANIA.  393 

[Ingham  v.  Crary.] 

which  that  deed  was  given ;  it  was  therefore  competent  to  show 
the  date  of  that  transaction,  for  a  transcript  is  sometimes  evi- 
dence for  a  particular  purpose :  Eisenhart  v.  Slayinaker,  14  S. 
&  R.  153. 

But  after  all  the  evidence  was  given,  and  the  aspect  in  which 
the  cause  went  to  the  jury,  there  is  'no  point  of  view  in  which 
it  can  be  considered  that  the  plaintiff  was  at  all  prejudiced  by 
that  evidence;  and  if  so,  this  court  will  not  reverse  the  ju<ig 
ment,  even  if  it  was  illegally  admitted :  Allen  v.  Rostairi,  1 1 
S.  &  R.  302;  Brown  v.  Downing,  4  Id.  498;  Edgar  v.  Boies,  11 
Id.  445. 

The  rule  that  the  declarations  of  a  wife  cannot  be  given  in  evi- 
dence against  her  husband,  is  not  applicable  here ;  nor  were  they 
offered  as  mere  declarations,  but  as  a  part  of  the  res  getttoe,  the 
declarations  of  one  engaged  in  making  the  contract  for  the  pur- 
chase of  the  lot ;  if  she  had  been  acting  even  as  the  agent  of  her 
husband,  her  declarations  would  be  evidence :  Commonwealth  v. 
Eberly,  3  S.  &  R.  9;  Babb  v.  Clemson,  12  Id.  328. 

The  law  is  well  settled  that  a  parol  gift  by  a  father  to  a  child, 
accompanied  by  possession  and  the  making  of  valuable  improve- 
ments, gives  a  good  title:  Syler  v.  Eckart,  1  Binn.  378.  This 
position  does  not  seem  to  be  controverted  on  the  other  side,  but  it 
is  called  an  equity  of  which  the  plaintiffs  had  not  notice  ;  this  is  not 
so,  for  Perry  was  alwavs  in  possession,  which  is  notice  to  every  one : 
Billington  v.  Welsh,  5  Binn.  129 ;  Harris  v.  Bell,  10  S.  &  R.  44 ; 
Beehman  v.  Frost,  18  Johns.  558. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J. — The  plaintiffs  claim  through  a  conveyance  from 
their  father  to  Kinsey,  an  inhabitant  of  Jersey,  who  obtained  the 
legal  title  for  a  valuable  consideration,  as  it  is  alleged,  and  without 
notice  of  the  equitable  estate  of  Perry  and  his  wife,  which,  whatever 
it  may  be,  is  vested,  at  least  for  her  life,  in  Beach,  one  of  the  de- 
fendants. To  rebut  this  allegation  of  a  purchase  without  notice,  it 
was  open  to  the  plaintiffs  to  show  that  the  title  was  conveyed  to 
Kinsey  on  a  secret  trust  to  enable  the  grantor  to  institute  an  eject- 
ment in  his  name,  in  the  Circuit  Court  of  the  United  States :  and 
with  a  view  to  this,  the  defendants  might  clearly  examine  the  sub- 
scribing witness,  who  was  also  the  attorney  of  the  parties,  not  only 
as  to  what  passed  at  the  execution  of  the  deed,  but  as  to  what  he 
himself  did  in  consequence  of  it ;  and  if  it  should  turn  out,  as  it  did 
here,  that  he  immediately  instituted  an  ejectment  in  the  federal 
court,  on  failure  of  which  the  premises  were  reconvened  to  the 
family  of  the  grantor,  it  would  furnish  not  only  competent,  but 
satisfactory  proof  that  the  original  conveyance  was  intended 
merely  to  give  color  of  jurisdiction  to  that  court ;  in  which 


394  SUPREME  COURT 

[Ingham  c.  Crary.] 

state  of  the  fact  it  would  be  without  effect  as  to  the  title  of  a  third 
person. 

The  docket  entries  in  the  Circuit  Court  which  were  offered,  for 
anything  that  appears,  to  show  that  another  action  for  the  same 
land  was  pending  when  the  present  suit  was  instituted,  were  un- 
doubtedly inadmissible.  It  expressly  appears  by  the  act  of  authen- 
tication that  the  whole  record  was  not  certified ;  and  perhaps  there 
is  in  Pennsylvania  a  peculiar  fitness  in  rejecting  the  arbitrary  and 
often  inaccurate  memoranda  and  references  from  the  minutes  on  the 
docket  to  the  various  parts  of  the  record,  as  evidence  of  its  contents. 
Even  convenience  would  not  be  served  by  relaxing  the  rule  which 
requires  the  whole  record  to  be  certified,  it  being  as  easy  to  procure 
the  whole  as  a  part,  and  were  anything  less  than  the  whole  to  suf- 
fice, we  can  readily  see  what  abuses  would  ensue  from  selecting  par- 
ticular parts  and  suppressing  the  rest.  Here  the  identity  of  the 
premises  was  the  fact  on  which  the  effect  of  the  record  as  evidence 
in  the  cause  essentially  depended  ;  and  to  prove  it,  an  abstract  of 
the  description  in  the  declaration  was  certainly  inferior  to  the  de- 
scription itself.  The  judge  himself  became  convinced  of  the  incom- 
petence of  the  record,  and  directed  the  jury  to  disregard  it;  but 
such  a  direction  was  held  in  Shaeffer  v.  Kreitzer,  6  Binn.  431,  and 
Nash  v.  Gilkeson,  5  S.  &  R.  352,  insufficient  to  repair  the  conse- 
quences of  the  error. 

It  is  not  to  be  doubted  that  the  evidence  to  establish  the  trust 
was  perfectly  competent.  It  is  generally  true  that  previous  stipu- 
lations merge  in  the  conveyance  which  is  the  consummation  of  the 
agreement ;  and  this  holds  between  the  immediate  parties  in  regard 
to  questions  of  satisfaction  of  previous  covenants,  but  not  between 
one  of  the  parties  and  a  third  person  in  regard  to  collateral  mat- 
ters ;  else  a  conveyance  of  the  legal  estate  would,  in  every  case, 
rebut  the  implication  of  a  trust.  Mrs.  Ingham,  in  the  absence  of 
her  husband,  applies  to  Mr.  Fell  to  purchase  the  lot  in  dispute  for 
the  benefit  of  her  daughter,  Mrs.  Perry.  The  terms  are  settled  and 
reduced  to  writing,  and  at  the  time  for  executing  the  contract,  her 
ability  to  treat  is  recognised  by  her  husband,  who  takes  the  convey- 
ance to  himself  and  not  to  his  daughter,  only  because  he  deems  it 
prudent  to  vest  the  legal  estate  in  himself,  the  son-in-law  being  in 
trade.  Had  the  gift  to  the  daughter  been  purely  gratuitous,  it 
might  have  been  guarded  from  the  claims  of  her  husband's  creditors 
by  the  creation  of  a  trust ;  but  her  equity  arises  from  an  expendi- 
ture of  money  by  her  husband,  in  pursuance  of  an  understanding 
by  all  parties  that  the  lot  with  the  improvements  should  be  a  pro- 
vision for  her,  without  which  the  gift  would  be  void.  I  discover  no 
evidence  of  a  gift  to  Perry  himself,  in  the  absence  of  which  the  ex- 
penditure of  his  money  would  give  him  no  estate,  in  addition  to  the 
freehold  which  the  law  allows  him  in  her  right ;  which,  however,  is 


June  1830.]  OF  PENNSYLVANIA.  395 

[Ingham  v.  Crary.] 

sufficient,  even  without  the  birth  of  a  child  (the  wife  being  alive), 
to  entitle  the  defendants  to  a  verdict;  and  should  the  jury,  whose 
province  it  is  to  judge  of  the  intention  from  the  evidence,  be  satis- 
fied that  the  gift  was  to  Perry,  or  to  him  and  his  wife  jointly,  the 
case  would  certainly  be  no  worse  for  the  defendants.  In  the  ad- 
mission of  this  part  of  the  evidence,  therefore,  and  the  direction  of 
the  judge  as  to  its  legal  effect,  we  perceive  no  error ;  but  for  the 
comparatively  unimportant  error  in  admitting  the  extract  of  a  re- 
cord, we  regret  to  say  the  judgment  must  be  reversed. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

The  principal  case  and  Sheaffer  v.  Kreitzer,  Nash  «.  Gilkeson  supra,  are 
stated  to  have  been  greatly  restricted,  if  not  overruled,  7  C.  l'J7  ;  see,  however, 
3  W.  N.  C.  123.  See  22  April  1856,  {4|  P.  L.  533,  remedying  the  law  as  to 
the  creation  and  assignment  of  trusts  in  land  by  parol. 


Burns  et  al.  against  The  Huntingdon  Bank. 

A  judgment  was  obtained  against  a  principal  who  gave  absolute  bail  to 
obtain  a  stay  of  execution,  after  which  the  absolute  bail  were  sued  and 
judgment  obtained  against  them.  Held,  that  one  of  two  sureties  in  the 
original  obligation,  who  paid  one-half  the  debt,  is  entitled  to  an  assignment 
of  the  judgments  against  the  principal  and  the  absolute  bail  to  enable  him  to 
indemnify  himself  tor  the  amount  thus  paid. 

The  order  of  the  Court  of  Common  Pleas  making  such  assignment  ia  the 
subject  of  a  writ  of  error. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Miff! in  county. 

Robert  Burns  borrowed  from  the  Huntingdon  Bank  $1000,  for 
which  sum  he  gave  his  note  with  John  Geissinger  and  James 
Mackey,  as  endorsers.  The  note  not  having  been  paid  at  maturity, 
the  bank  sued  Robert  Burns  and  obtained  a  judgment  against  him, 
and  sued  Geissinger  and  Mackey^the  endorsers,  and  obtained  judg- 
ment against  them.  On  the  24th  January  1818,  Hugh  Burns, 
James  Robinson  and  John  Rothrock,  became  the  absolute  bail  in 
the  judgment  against  Robert  Burns,  under  the  7th  section  of  the 
Act  of  21st  March  180(3,  to  obtain  for  the  defendant  a  stay  of  ex- 
ecution for  one  year  from  the  return  day  of  the  writ.  The  money 
not  having  been  paid  within  the  year,  the  bank  sued  the  recognis- 
ance of  Hugh  Burns,  James  Robinson  and  John  Rothrock,  to  Au- 
gust term  1818,  and  obtained  a  judgment  against  them,  upon  which 
a  fieri  facias  issued,  and  was  levied  upon  real  estate,  which  was 
extended. 

Geissinger,  having  paid  the  one-half  of  the  judgment  which  had 
been  obtained  against  him  and  Mackey  as  endorsers,  on  the  21st 
August  1824,  obtained  from  the  Court  of  Common  Pleas  a  rule 
upon  Robert  Burns,  the  principal,  and  Hugh  Burns,  James  Robin- 


396  SUPREME  COURT  [Sunbury 

[Burns  v.  Huntingdon  Bank.] 

son  and  John  Rothrock,  the  absolute  bail,  to  show  cause  "  why  the 
judgment  at  the  suit  of  the  Huntingdon  Bank  v.  Robert  Burns, 
and  any  recognisance  in  that  suit,  should  not  be  marked  for  the  use 
ot  the  said  John  Geissinger,  for  the  purpose  of  enabling  him  to  in- 
demnify himself  for  the  money  which  he  had  paid  in  the  suit  of  the 
same  bank  against  him  and  Mackey." 

The  right  of  the  court  to  enforce  this  rule  was  denied  on  two 
grounds :  First.  That  both  parties  are  bail  of  Robert  Burns,  and 
neither  has  a  superior  equity.  And  second.  That  Geissinger  is  not, 
at  all  events,  entitled  to  the  interposition  of  the  equitable  power  of 
the  court,  until  he  has  paid  the  whole  of  the  money. 

Both  these  positions  were  overruled  by  the  court  (Burdside,  pres- 
ident,) who  made  the  rule  absolute. 

This  order  of  the  court  was  here  assigned  for  error. 

Potter,  for  defendant  in  error,  moved  to  quash  the  writ,  on  the 
ground  that  there  was  no  final  judgment,  but  a  mere  exercise  of  the 
discretion  of  the  court. 

Elanchard,  for  plaintiff  in  error. — The  exercise  of  the  power  of 
the  court  was  in  the  nature  of  an  action,  by  which  one  was  made 
liable  to  another  for  money  ;  in  all  such  cases  a  writ  of  error  will 
lie :  The  Commonwealth  v.  The  Judges  of  the  Common  Pleas  of 
Philadelphia  County,  3  Binn.  273. 

The  claim  of  Geissinger  to  the  right  to  have  execution  against 
the  absolute  bail,  is  in  the  nature  of  a  right  of  action  against  them, 
and  if  it  can  be  sustained,  must  have  the  essential  qualities  of  a 
right  of  action — privity  of  contract  and  a  consideration  ;  neither  of 
these  exist  here.  Both  Geissinger  and  Hugh  Burns  and  others, 
the  absolute  bail,  are  liable  to  the  bank,  each  in  consequence  of  his 
independent  legal  obligation ;  as  between  themselves,  there  is  no 
privity,  and  neither  has  a  superior  equity  to  the  other ;  in  such 
cases  a  court  of  equity  will  not  interfere :  Viers  et  ux.  v.  Mont- 
gomery, 4  Cranch  177. 

Equality  is  not  equity  between  sureties  bound  by  different  obli- 
gations :  Peck  t>.  Ellis,  2  Johns.  Ch.  137  ;  Burrows  v.  McWhann, 
1  Dessaussure's  Ch.  Rep.  409 ;  3  Har.  &  McIIen.  254 ;  Ranch  v. 
Becker,  12  S.  &  R.  412;  Bachelder  v.  Fisk,  17  Mass.  4G4. 

But  at  all  events  there  can  be  no  substitution  until  the  whole 
debt  is  paid ;  no  one  can  take  the  place  of  the  bank  until  it  is  first 
satisfied. 

Potter,  for  defendant  in  error. — The  bank  having  obtained  a 
judgment  against  the  principal  in  the  note,  who  procured  absolute 
bail  to  be  entered  for  a  stay  of  execution,  the  recognisance  then 
entered  into  became  a  part  of  the  judgment,  and  an  additional 


June  1830.J  OF  PENNSYLVANIA.  397 

[Burns  v.  Huntingdon  Bank.] 

security  to  the  bank  ;  and  upon  the  well  settled  principles  of  equity 
in  Pennsylvania  a  security  who  pays  money  for  the  principal  is 
entitled  to  all  the  securities  which  the  plaintiff  has  for  the  debt: 
Wolfersberger  v.  Bucher,  10  S.  &  R.  12.  The  same  doctrine  is 
contained  in  Parsons  v.  Briddock,  2  Vern.  608.  If  the  Hunting- 
don Bank  had  had  the  bond  of  a  third  person  as  a  collateral  security, 
the  endorsers  would  have  been  entitled  to  an  assignment  of  it  also : 
Hays  v.  Ward,  4  Johns.  Ch.  127.  The  doctrine  of  substitution 
does  not  depend  upon  privity  of  contract,  but  upon  principles  of 
equity  and  justice:  Dorsheirner  v.  Bucher,  7  S.  &  R.  9  ;  Lenox  v. 
McCall,  9  Id.  309;  Classen  v.  Morris,  10  Johns.  R.  524;  Wad- 
dington  v.  lledinburg,  2  Johns.  Ca.  227  ;  King  v.  Baldwin,  2  Johns. 
Ch.  554  ;  1  Eq.  Ca.  Ab.  93  ;  1  Atk.  135  ;  2  P.  Wms.  543 ;  Hawk 
v.  Geddis,  16  S.  &  R.  23. 

The  endorsers  were  prejudiced  by  the  interference  of  the  abso- 
lute bail  who  put  a  stop  to  the  proceeding  of  the  bank  to  obtain  the 
money. 

Hale,  in  reply. — We  are  concerned  as  well  for  the  bank  as  for 
the  absolute  bail,  and  contend  that  in  no  case  can  the  sureties  claim 
an  assignment  of  the  judgment  or  other  security  against  the  prin- 
cipal until  they  have  paid  the  whole  debt.  Here  Geissinger  has 
paid  but  one-half  of  the  debt,  and  under  these  circumstances  no 
court  has  power  to  interfere  with  the  securities  of  the  bank  until 
their  debt  is  paid  in  full. 

If  this  order  of  the  Common  Pleas  is  sustained  Geissinger  may 
take  out  a  lib.  fac.  for  the  one-half  of  the  judgment  and  at  some 
future  day  Mackey  may  pay  the  other  half  and  take  out  a  lib.  fac. 
for  his  money  ;  or  before  such  payment  the  bank  may  take  out  a 
lib.  fac.  for  the  balance  yet  due  to  them,  which  would  be  exceed- 
ingly inconvenient  and  irregular,  and  which  shows  the  propriety  of 
the  rule  that  the  whole  debt  must  'be  paid. 

The  entry  of  absolute  bail  for  the  stay  of  execution  was  a  legal 
consequence,  and  which  the  endorsers  therefore  knew  when  they 
undertook  the  responsibility  of  endorsing  for  Robert  Burns.  They 
were  not  prejudiced  by  this ;  and  if  they  were  it  was  the  subject 
of  proof,  and  which  it  was  incumbent  upon  them  to  make. 

But  there  is  another  ground  of  objection.  Although  the  condi- 
tion of  the  recognisance  entered  into  by  the  absolute  bail  was  that 
the  defendant  in  the  judgment  should  pay  the  money  within  (///<•<//-, 
yet  time  was  not  of  the  essence  of  that  contract,  for  a  discharge  of 
the  original  judgment  at  any  time  thereafter  would  be  a  discharge 
pro  tanto  of  the  recognisance,  whether  that  payment  be  made  by 
the  defendant  himself  or  by  any  collateral  security  which  the  plain- 
tiffs had  for  their  money.  The  payment,  therefore,  by  Geissinger 
of  $500  discharged  the  judgment  against  the  principal  to  that 


398  SUPREME  COURT  [Sunbury 

[Burns  r.  Huntingdon  Bank.] 

amount,  and  of  course  discharged  the  recoguisance  of  the  absolute 
amount. 

The  opinion  of  the  court  was  delivered  by 

GIRSOX,  C.  J. — It  seems  the  bank  is  satisfied,  and  the  question  is 
between  Geissinger,  who  actually  paid  the  debt  of  Burns  and  Roth- 
rock  and  Robinson,  who  were  bound  by  recognisance  and  judgment 
to  pay  it.  As  against  Burns,  in  relation  to  whom  Geissinger  stood 
as  a  surety,  the  case  would  be  clear ;  but  it  is  said  that  as  against 
Rothrock  and  Robinson,  who  also  stands  in  the  relation  of  sureties, 
and  not  in  privity  with  Geissinger,  there  is  not  the  same  equity. 
Privity  is  perhaps  essential  to  a  claim  for  contribution,  but  it  is 
certainly  not  indispensable  to  the  right  of  subrogation,  of  which 
Parsons  r.  Briddock,  2  Vern.  608  is  an  emphatic  instance.  There 
a  judgment  against  bail  in  an  action  on  the  several  bond  of  the  prin- 
cipal was  decreed  to  be  assigned  to  the  sureties  who  had,  in  the 
meantime,  been  compelled  by  an  action  on  the  same  bond  to  pay 
the  debt.  Yet  there  was  no  privity ;  and  although  both  parties 
stood  in  the  relation  of  surety  towards  the  principal,  they  never- 
theless stood  in  unequal  equity  between  themselves,  because  the  bail 
had  so  identified  himself  with  the  principal  as  not  to  be  distinguished 
from  him.  Nor  ought  they  to  be  distinguished  here,  inasmuch  as 
they  interposed  to  procure  a  personal  advantage  to  the  principal, 
and  to  the  detriment  of  the  surety,  who  might,  perhaps,  have  been 
exonerated  had  the  proceedings  not  been  staid  against  the  prin- 
cipal ;  and  in  this  respect  the  case  is  rather  stronger  than  Parsons 
v.  Briddock.  The  bank  being  satisfied,  there  is,  therefore,  no  doubt 
that  Geissinger  is  to  be  substituted  for  the  amount  paid  by  him. 
On  the  other  hand,  there  is  as  little  doubt  that  a  writ  of  error1  lies 
on  an  order  like  the  present,  which  is  in  the  nature  of  an  award  of 
execution,  and  which  would  otherwise  leave  a  party  injured  by  it 
without  remedy. 

Order  of  the  Common  Pleas  affirmed. 

1  See  however,  22  Smith  103. 

Referred  to,  2  Wh.  154  ;  9  W.  455  ;  1  Jones  48  ;  22  Smith  350  ;  1  Norris 
82,  s.  c.  2  \V.  N.  C.  66H. 
Affirmed,  9  Smith  406. 
Followed,  1  W.  &  S.  157,  158  ;  5  Id.  356. 
Leathrop  and  Dale's  Appeal,  1  Barr  512;  11  C.  117;  2  Smith  398. 


June  1830.]  OF  PENNSYLVANIA.  309 

De\7inney  ayain*t  Rceder. 

The  Court  of  Common  Pleas  may  grant  a  new  trial  upon  the  terms  that  the 
defendant  shall  pay  all  the  costs  which  have  accrued  up  to  the  time  of  trial  ; 
and  may  enforce  that  rule  by  entering  judgment  upon  the  verdict  against  the 
party  refusing  to  comply  with  it. 

But  if  the  plaintiff  acquiesces  in  the  non-payment  of  the  costs,  by  proceed- 
ing to  take  testimony  on  a  commission  to  another  state,  or  proceeds  to  enforce 
the  payment  of  them  by  citation  and  attachment,  he  cannot  afterwards  have 
judgment  by  default  of  the  payment  of  such  costs. 

ERROR  to  Huntingdon  county. 

This  was  an  action  of  ejectment  brought  by  Mary  Anne  Reedcr 
against  Daniel  Devinney. 

At  January  Term  1818,  the  cause  was  tried  and  a  verdict  given 
for  the  plaintiff.  At  the  same  time  the  court  granted  a  new  trial, 
"  on  payment  of  costs  by  the  defendant."  At  November  Term  181-8, 
the  plaintiff  took  a  commission  to  Ohio,  to  take  the  testimony  of 
witnesses  on  interrogatories  filed  and  served  on  the  defendant.  On 
motion  of  plaintiff's  counsel,  at  April  Term  1819,  a  rule  was 
granted  on  Daniel  Devinney  to  pay  the  costs  of  suit  up  to  the  time 
of  trial.  On  motion  of  plaintiff's  counsel,  at  April  Term  1820,  a 
rule  was  granted  on  Daniel  Devinney  to  show  cause  why  an  attach- 
ment should  not  issue  against  him  for  not  paying  the  bill  of  costs. 
It  did  not  appear  by  the  record  whether  these  rules  were  served  or 
not.  On  the  26th  February  1822,  on  motion  of  the  plaintiff's 
attorney,  the  court  granted  a  rule  on  the  defendant,  "that  judg- 
ment be  entered  for  the  plaintiff  upon  the  verdict  on  the  1st  day  of 
June  next,  unless  the  costs  be  paid  agreeably  to  the  terms  on  which 
the  new  trial  was  granted."  On  the  3d  June  1822,  the  costs  not 
having  been  paid,  the  prothonotary,  without  motion,  but  by  direc- 
tion of  the  plaintiff's  attorney,  entered  judgment  for  the  plaintiff 
according  to  the  rule. 

This  writ  of  error  was  sued  out  to  reverse  that  judgment. 

Fisher,  for  plaintiff  in  error,  contended  that  the  proceedings  by 
the  defendant  in  error,  after  the  new  trial  was  awarded,  was  an 
election  from  two  remedies  by  which  she  was  bound.  The  payment 
of  costs  by  the  defendant  was  waived  by  the  plaintiff  proceeding  to 
prepare  for  another  trial,  and  thus  putting  the  defendant  to  the 
trouble  and  expense  of  taking  depositions  on  her  commission  to  the 
state  of  Ohio :  Clark  v.  McAnulty,  3  S.  &  11.  304 ;  Zeigler  v. 
Fowler,  Id.  288. 

Hale,  for  defendant  in  error. — The  payment  of  the  costs  was  a 
condition  precedent  to  the  award  of  a  new  trial ;  and  could  only  be 
enforced  by  a  rule  on  the  defendant  to  pay  them,  or  yield  the  right 
to  have  a  new  trial.  The  defendant  had  not  agreed  to  accept  the 
terms  offered  by  the  court,  and  could  not  therefore  be  compelled 
to  pay  the  costs  upon  attachment,  those  rules  therefore  upon  him, 
were  irregular ;  the  only  one  which  could  legally  be  enforced  was 
the  last  one,  upon  which  the  court  acted. 


400  SUPREME  COURT  [Sunbury 

[Devinney  v.  Reeder.] 

The  judgment  entered  by  the  prothonotary  was  irregular:  1 
Tidd's  Prac.  506. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — After  verdict  for  the  plaintiff,  the  court,  on  motion, 
granted  a  new  trial  on  payment  of  costs  by  the  defendant.  Award- 
ing a  new  trial  on  terms,  is  the  every -day  practice  in  England,  and 
there  can  be  no  doubt  it  is  a  power  inherent  in  the  courts  of  this 
state. 

Had  the  defendants  refused  to  pay  the  costs,  on  a  rule  granted 
for  that  purpose,  the  court  might  have  rendered  judgment  on  the 
verdict ;  which  would  be  in  the  nature  of  a  penalty,  for  a  non- 
compliance  with  the  order  of  the  court.  Instead  of  applying  to 
the  court  in  the  first  instance,  or  taking  any  other  means  to  enforce 
compliance  with  the  order,  the  plaintiff  by  entering  a  rule  for  a 
commission,  treated  the  cause  in  the  same  manner  as  if  a  new  trial 
had  been  granted  without  condition.  Although  this  proceeding 
may  not  prevent  him  from  compelling  the  payment  of  the  costs  by 
attachment ;  yet  by  this  step,  he  waives  the  right  of  making  the 
payment  of  costs  a  condition  precedent  to  a  new  trial.  At  the 
April  Term  1819,  the  court,  on  motion,  entered  a  rule  on  Daniel 
Devinney  to  pay  the  costs  of  the  suit  up  to  the  time  of  the  new  trial. 
At  the  April  Term  1820,  the  court  also,  on  motion,  granted  a  rule 
to  show  cause  why  an  attachment  should  not  issue  against  the  de- 
fendant for  not  paying  the  bill  of  costs. 

Why  these  rules  were  not  enforced  we  have  not  been  informed. 
We  have  no  evidence  that  they  were  abandoned  by  leave  of  the 
court;  but  the  contrary  appears.  On  the  26th  February  1822,  we 
have  the  following  rule  :  "  Rule  that  judgment  be  entered  for  plain- 
tiff, by  the  1st  day  of  June  next,  unless  the  costs  be  paid  agreeably 
to  the  terms  on  which  the  new  trial  was  granted."  And  on  the  3d 
of  June  we  have  this  entry  :  "  The  defendant  having  neglected  to 

fay  the  costs,  therefore  judgment  for  plaintiff  agreeably  to  rule." 
t  is  impossible  to  inspect  the  record  without  perceiving  that  the 
rule  on  which  judgment  was  given  was  entered  in  vacation  without 
leave  of  the  court,  and  also  that  judgment  was  signed  in  vacation, 
without  any  proof  whatever  of  the  service  of  the  rule  on  the  de- 
fendant. This  is  a  practice  we  cannot  sanction.  The  rule  for  the 
payment  of  costs,  on  judgment,  is  an  act  of  the  court  which  cannot 
be  entered  in  vacation,  but  must  be  granted  by  the  court,  on  mo- 
tion in  open  court ;  in  them,  not  in  the  party,  is  vested  the  power 
of  fixing  the  time  for  the  payment  of  costs,  on  the  penalty  of  judg- 
ment in  case  default  be  made.  It  is  also  a  first  principle  in  the 
administration  of  justice,  that  the  party  on  whom  the  rule  is  granted, 
shall  have  reasonable  notice. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

GIBSON,  C.  J.,  unwell,  and  not  present  at  the  argument. 


June  1830.]  OF  PENNSYLVANIA.  401 

Commonwealth  against  Henderson. 

An  administration  account,  stated  and  filed  in  the  register's  office,  is  not  a 
compliance  with  a  recognisance,  conditioned  for  the  settlement  of  an  account ; 
and  upon  a  suit  brought  upon  that  recognisance  by  one  of  the  heirs  of  the 
estate  which  the  administrator  represented,  he  is  entitled  to  recover  nominal 
damages,  although  the  jury  may  believe  that  his  interest  in  the  estate  had 
been  paid  to  him. 

It  is  error  to  submit  a  motion  of  law  to  the  jury. 

WRIT  of  error  to  Mifflin  county. 

In  the  court  below  this  was  an  action  of  debt  brought  upon  a 
recognisance  ;  and  the  following  were  all  the  facts  of  the  case : 

Thomas  Gilson,  in  1817,  died  intestate,  leaving  real  and  personal 
estate  and  several  children,  one  of  whom  was  married  to  Thomas 
Beale,  the  plaintiff's  intestate.  In  the  year  1818,  Thomas  Beale 
obtained  from  the  Orphans'  Court  of  Mifflin  county,  a  citation  to 
David  and  William  Gilson,  who  were  the  administrators  of  Thomas 
Gilson,  to  appear  and  settle  an  account  of  their  administration ; 
at  subsequent  terms  an  attachment  and  alias  attachment  were 
awarded  against  them  ;  upon  the  latter,  the  sheriff,  on  the  7th  March 
1819,  brought  the  said  David  and  William  Gilson  into  court. 
Thomas  Henderson,  the  defendant,  then  entered  into  the  recogni- 
sance upon  which  this  suit  is  brought,  in  the  sum  of  $3000,  on  con- 
dition "  that  the  said  David  Gilson  and  William  Gilson  should 
appear  at  the  Orphans'  Court,  to  be  held  the  third  Monday  of 
April  next,  and  settle  an  account  of  their  administration  of  the 
estate  of  Thomas  Gilson,  deceased."  This  was  the  plaintiff's  case, 
upon  showing  which  he  rested. 

The  defendant  then  exhibited  an  account  of  the  administration 
of  the  estate  of  Thomas  Gilson,  deceased,  by  his  administrators, 
David  and  William  Gilson,  which  had  been  filed  by  them  in  the 
register's  office  of  Mifflin  county,  on  the  16th  March  1819  ;  but 
which  had  never  been  approved  or  confirmed  by  the  Orphans' 
Court. 

Upon  this  evidence,  the  court  charged  the  jury  as  follows:  "We 
are  of  opinion  that  in  point  of  strict  law  the  plaintiff  is  entitled  to 
recover ;  but  if  the  jury  believe  that  Thomas  Beale  was  satisfied, 
we  leave  it  to  them  to  say  whether  the  plaintiff  is  entitled  to  one 
farthing ;  and  if  they  think  proper,  they  may  find  a  general  ver- 
dict for  the  defendant. " 

Exception  was  taken  by  the  plaintiff  to  this  charge,  and  it  was 
as  error  in  this  court. 

Fisher,  for  plaintiff  in  error. 
Hale,  for  defendant  in  error. 

PER  CURIAM. — The  judgment  of  the  Court  of  Common  Pleas  is 
reversed,  because  the  court  left  the  determination  of  the  law  to  tha 
1  P.  &  W.— 26 


402  SUPREME  COURT 

[Commonwcuth  v.  Henderson.] 

jury.  It  is  apparent  that  the  plaintiff  is  entitled  to  at  least 
nominal  damages;  notwithstanding  which  the  court  left  it  to  the 
jury  to  say  whether  the  plaintiff  was  entitled  to  one  farthing ;  and 
instructed  them  that  if  they  believed  Beale  was  satisfied,  they 
might  find  a  general  verdict  for  the  defendant.  In  this  there  was 
manifest  error. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


Hall  et  al.  against  Benner. 

A  purchaser  at  sheriff's  sale  before  the  deed  is  acknowledged,  has  not  such 
a  title  to  the  land  struck  down  to  him,  as  will  authorize  him  to  give  a  lease 
of  the  premises  ;  and  if  he  does  give  such  a  lease  to  the  defendant  as  whose 
property  it  was  sold,  it  will  not  create  the  relation  of  landlord  and  tenant 
between  them,  so  as  to  estop  the  lessee  from  disputing  the  title  of  the  lessor. 

The  general  rule  of  law,  that  a  tenant  shall  not  dispute  the  title  of  his 
landlord,  is  restricted  to  cases  in  which  the  lease  has  been  fairly  obtained, 
without  any  misrepresentation,  management  or  fraud. 

The  date  of  a  deed  is  prima  facie  evidence  of  the  time  of  its  delivery,  but  it 
is  not  conclusive. 

The  recital  in  a  sheriff's  deed  that  the  sale  was  made  on  a  certain  day.  docs 
not  estop  the  grantee  from  showing  by  parol  that  it  was  made  on  a  prior  day. 

Whether  a  water-right  and  tilt-hammer  are  appurtenances  to  land,  and  will 
pass  by  a  sheriff's  sale  made  by  virtue  of  a  judgment  upon  a  mortgage  of 
the  land,  depends  upon  the  facts  of  the  case,  and  must  be  submitted  as  a 
matter  of  fact  to  the  jury. 

If  the  court  should  decide  from  inspection  of  the  papers,  that  such  a  right 
would  pass  as  an  appurtenant,  it  would  be  error. 

WRIT  of  error  to  the  Court  of  Common  Pleas  of  Centre  county. 

This  was  an  action  of  ejectment  brought  by  Josiah  M.  Benner, 
against  John  Hall,  Jr.,  to  recover  three  lots  of  ground,  a  house, 
blacksmith  shop,  tilt-hammer  and  water-right  in  the  borough  of 
Bellefonte. 

The  defendants  took  defence  for  the  blacksmith  shop,  tilt-hammer 
and  water-right. 

John  Hall,  Sr.,  under  whose  title  both  parties  claimed,  was  the 
owner  of  three  lots  of  ground,  which  he  held  by  deeds  from  James 
Harris  and  wife;  the  lots  adjoined  each  other,  and  were  each 
described  in  the  deeds  from  Harris  to  Hall,  Sr.,  thus,  "containing 
sixty  feet  in  front  on  Spring  street,  extending  thence  westward  to 
the  water  edge  of  Spring  creek." 

James  Smith,  who  was  the  owner  of  land  on  Spring  creek,  above 
and  near  to  these  three  lots,  by  deed,  dated  20th  April  1806,  con- 
veyed to  John  Hall,  Sr.,  "  the  right  to  erect  a  dam  in  said  creek, 


June  1830.]  OF  PENNSYLVANIA.  403 

[Hall  v.  Benner.] 

upon  the  land  of  the  said  Smith,  and  to  use  the  water  of  Spring 
creek,  for  the  purpose  of  working  a  tilt-hammer  and  blade-mill  ; 
and  the  said  Hall  to  erect  no  other  mill." 

On  the  4th  of  January  1819,  John  Hall,  Sr.,  and  wife  conveyed 
the  said  lots  to  John  Hall,  Jr.,  and  described  the  property  in  the 
deed,  thus,  "  three  certain  lots  of  ground  situate  in  the  borough  of 
Bellefonte,  being  Nos.  130,  131,  132,  in  the  plan  of  said  town,  on 
the  west  side,  and  fronting  on  Spring  street,  adjoining  each  other, 
and  extending  westward  to  the  water  edge  of  Spring  creek  (they 
being  the  same  lots  which  James  Harris  and  wife  conveyed  to  John 
Hall,  Sr.),  together  with  all  and  singular  the  houses,  out-houses 
and  buildings,  ways,  woods,  waters,  watercourses,  rights,  liberties, 
privileges,  hereditaments  and  appurtenances,  whatsoever  thereunto 
belonging,  or  in  anywise  appertaining,  and  the  reversions  and 
remainders,  rents,  issues  and  profits  thereof.  Also,  all  the  estate, 
right,  title  and  interest,  use,  claim  and  demand  whatsoever  of  the 
said  John  Hall  and  his  wife,  in  law,  equity  or  otherwise  howso- 
ever, of,  into  or  out  of  the  same;  to  have  and  to  hold  the  said  three 
lots  of  ground,  hereditaments  and  premises  hereby  bargained  and 
sold,  with  the  appurtenances,  to  the  said  John  Hall,  the  younger, 
his  heirs  and  assigns  for  ever,  warranting  the  within-described  three 
lots  of  ground,  hereditaments  and  premises  hereby  bargained  and 
sold,  with  the  appurtenances,  to  John  Hall,  Jr.,  against  all  persons 
whatsoever." 

On  the  20th  October  1821,  John  Hall,  Jr.,  executed  a  mortgage 
to  Roland  Curtin  upon  these  premises,  in  which  they  are  described 
as  "the  three  lots,  Nos.  130,  131,  132,  which  John  Hall,  Sr.,  con- 
veyed to  John  Hall,  Jr.,  together  with  the  buildings,  rights,  ways, 
watercourses  and  appurtenances  whatsoever  thereunto  belonging, 
and  in  anywise  appertaining." 

There  was  an  amicable  judgment  confessed  by  the  defendant, 
John  Hall,  Jr.,  upon  a  scire  facias,  on  this  mortgage,  which  was 
entered  No.  3,  November  term  1824.  A  levari  facias  issued  on 
this  judgment  to  November  term  1824,  No.  4,  upon  which  the 
property  was  sold  to  Josiah  M.  Benner,  the  plaintiff,  for  $1005. 

To  the  admission  of  these  proceedings  in  evidence  the  defendants 
objected,  that  they  are  not  regular;  the  scire  facias  is  not  signed 
or  sealed  by  the  officer;  not  tested  of  any  term  ;  and  the  judgment 
purports  to  be  entered  before  the  test-day  of  the  writ. 

These  objections  were  overruled  and  exception  was  taken  by  the 
defendant. 

After  the  sale  to  Benner.  the  sheriff  who  made  it  went  out  of 
officer  before  a  deed  was  executed,  and  bv  an  order  of  the  court, 
his  successor  executed  a  deed  to  the  plaintiff,  on  the  2tith  April 
1825,  which  was  acknowledged  in  open  court  the  same  day. 

The  plaintiff  then  offered  in  evidence  a  lease  for  the  premises  in 
dispute  from  him  to  the  defendant,  dated  26th  November  1824. 


404  SUPREME  COURT  [Sunlwry 

[Hall  v.  Benner.] 

The  defendant  objected  to  this  evidence  on  the  ground  that 
Josiah  M.  Benner  had  no  right  to  give  a  lease,  not  having  received 
a  deed  from  the  sheriff,  that  the  deed  afterwards  received  by  him 
recites  the  sale  to  have  been  made  after  the  lease  purports  to  have 
been  executed,  and  that  the  writ  of  levari  facias  was  not  returned. 

These  objections  were  overruled  by  the  court,  the  testimony 
admitted,  and  exception  taken  by  the  defendant. 

The  plaintiff  then  gave  evidence  that  the  property  was  struck 
down  before  the  date  of  the  lease. 

The  defendants  gave  some  parol  evidence  of  the  circumstances 
which  occurred  between  the  parties  at  the  time  the  lease  was  exe- 
cuted, from  which  they  contended  that  undue  means  were  made  use 
of  by  Benner,  in  obtaining  the  consent  of  Hall  to  execute  it. 

The  defendants  then  offered  to  prove  "  that  a  considerable  part 
of  the  shop  is  built  outside  of  the  three  town  lots,  and  on  the  right 
conveyed  by  Smith  to  Hall,  the  elder,  by  deed,  dated  the  26th 
April  1806:  that  on  the  26th  January  1825,  and  after  the  mort- 
gage was  given,  Hall  the  elder,  conveyed  this  same  right  to  Hall 
the  younger,  the  defendant  in  this  suit." 

This  evidence  was  objected  to  by  the  plaintiff.  First.  Because 
the  defendant  is  a  tenant,  and  cannot  dispute  the  title  of  his  land- 
lord. And  second.  Because  the  written  papers  vest  the  title  in  the 
purchaser  at  sheriff's  sale. 

On  both  grounds  the  testimoney  was  overruled  by  the  court,  who 
instructed  the  jury  "  that  the  plaintiff  had  shown  a  right  to  recover 
on  every  ground." 

1st.  As  landlord,  it  is  a  sacred  principle  of  the  law,  that  the 
tenant  shall  not  dispute  the  title  of  his  landlord. 

2d.  That  the  fair  and  correct  construction  of  the  defendants' 
conveyance,  mortgage,  judgment,  sale  and  sheriff's  deed,  vested  the 
right  to  the  whole  property,  whatever  it  was,  in  the  plaintiff,  and 
that  the  conveyance  by  Smith  was  an  appurtenance,  which  attached 
to,  and  passed  with  the  other  property. 

A  verdict  and  judgment  having  been  rendered  for  the  plaintiff, 
the  defendant  sued  out  this  writ  of  error. 

Blanchard  and  Hale,  for  plaintiffs  in  error. — Benner  having  had 
no  title  whatever  to  the  premises  in  dispute  at  the  date  of  the  lease, 
he  could  not  create  a  tenancy  and  that  he  had  no  right,  is  estab- 
lished by  the  case  of  Hawk  v.  Stouch,  5  S.  &  R.  157. 

If  the  lease  was  evidence  at  all,  it  was  only  admissible  to  show 
what  Hall  considered  was  sold  to  the  plaintiff,  and  not  as  conclu- 
sive evidence  of  what  the  plaintiff's  right  was. 

Whether  the  acceptance  of  the  lease  by  Hall  was  a  surrender  of 
his  title,  was  a  matter  of  fact,  which  should  have  been  submitted 
to  the  jury  under  all  the  evidence  which  was  given,  and  which 
was  offered  to  be  given  by  the  defendants :  Hamilton  v.  Mars- 


June  1830.]  OF  PENNSYLVANIA.  405 

[Hall  v.  Benner.] 

den,  6  Binn.  45 ;  Galloway  v.  Ogle,  2  Id.  468  ;  Jackson  ex  dem. 
v.  Vosburg,  7  Johns.  R.  186 ;  Miller  v.  McBrier,  14  S.  &  11.  ?82 ; 
Brown  v.  Dysinger,  1  llawle  408. 

There  can  be  no  intendment  or  presumption  of  what  was  con- 
veyed to  John  Hall,  Jr.,  previously  to  the  execution  of  the  mort- 
gage, for  the  deeds  are  plain,  and  manifestly  convey  the  three  lots 
of  ground  and  nothing  else.  The  property  now  in  dispute  is  not 
an  appurtenant  to  the  lots,  but  is  of  itself  a  freehold  which  came 
to  John  Hall,  Jr.,  by  deeds  separate  and  independent  of  those  which 
conveyed  to  him  the  lots,  and  obtained  at  a  different  time ;  and  that 
after  the  execution  of  the  mortgage,  upon  which  the  plaintiff's  title 
is  predicated ;  it  is  a  property  in  addition  to  the  lots  and  not  at  all 
embraced  within  the  description  as  contained  in  the  mortgage  or 
any  of  the  previous  conveyances.  Land  cannot  be  appurtenant  to 
land  :  1  Plow.  170  ;  3  Saund.  401,  cited  Bettesworth's  Case,  2  Rep. 
32  ;  Blackburn  v.  Edgely,  1  P.  Wms.  603 ;  Smithson  v.  Cage, 
Cro.  Jac.  526. 

Potter,  for  defendant  in  error. — The  terms  of  the  several  deeds 
which  conveyed  the  title  to  the  mortgaged  premises  are  sufficiently 
comprehensive  to  carry  the  appurtenance  which  is  now  in  dispute  : 
Pickering  v.  Stapler,  5  S.  &  R.  107  ;  Blaine  v.  Chambers,  1  Id. 
169 ;  Duribar  v.  Jumper,  2  Yeates  74  ;  Gray  v.  Holdship,  17  S.  & 
R.  413. 

The  possession  of  the  water-right  or  appurtenant  always  accom- 
panied the  deeds  ;  and  it  is  apparent  from  all  the  papers  that  it  was 
the  intention  of  the  father  and  the  son  that  the  tilt-hammer  and  the 
water-right  was  to  pass  by  the  deed.  They  never  thought  of  con- 
veying them  separately  until  after  this  cause  of  action  arose. 

The  lease  to  Hall,  Jr.,  by  Benner  was  voluntarily  accepted,  and 
cannot  now  be  impeached  :  Graham  v.  Moore,  4  S.  <fc  R.  467 

The  opinion  of  the  court  was  delivered  by 

Ross,  J. — This  was  an  ejectment  for  three  lots  of  ground,  house, 
blacksmith  shop  and  tilt-hammer  in  the  borough  of  Bellefonte. 

The  defendants  took  defence  for  the  blacksmith  shop,  tilt-hammer 
and  water-right. 

The  first  bill  of  exception  was  to  the  admission  of  the  amicable 
scire  facias  and  the  confession  of  judgment  thereon  the  2'Jth  of 
October  1824,  for  $742.68. 

The  objection  to  the  scire  facias  was,  that  it  was  not  regular;  not 
signed  and  sealed  by  the  officer,  and  not  tested  at  any  term  :  to  the 
judgment  because  it  purports  to  be  a  judgment  before  the  test  day 
of  the  scire  facias  on  the  mortgage. 

The  law  is  well  settled  that  a  man  may  waive  any  right  to  a  par- 
ticular mode  of  judicial  proceeding  against  himself.  The  plaintiffs 
in  error  could  not  have  been  proceeded  against  adversely  on  the 


400  SUPREME  COURT  [Sunbury 

[Hall  r.  Benncr.J 

mortgage  in  any  other  way  than  by  ejectment,  or  by  a  scire  facias 
under  the  Act  of  Assembly.  But  when  the  mortgagor  is  alone  tc 
be  affected,  lie  may  agree  to  dispense  with  botii  these  modes  or  pro- 
ceeding, which  have  been  provided  as  well  for  his  protection,  as  a 
remedy  for  the  mortgagee.  This  is  often  done  by  the  consent  of 
the  parties  to  save  costs;  sometimes  to  expedite  the  sale  and  the  col- 
lection of  the  money  ;  sometimes  to  render  a  purchaser  more  secure 
in  his  title  at  an  earlier  day  than  it  could  be  otherwise  done  in  pur- 
suance of  a  previous  agreement.  The  plaintiff's  in  error,  on  the 
29th  of  October  1824,  entered  an  amicable  scire  facias  and  judg- 
ment thereon,  by  agreement  with  the  mortgagee,  for  $742.68. 

A  levari  facias  issued  to  the  November  term  following.  It  might 
very  properly  be  tested  of  the  preceding  term.  It  is  done  so  in 
other  cases  where  execution  issues  on  a  judgment  entered  in  vaca- 
tion to  the  next  succeeding  term. 

To  this  course  all  the  parties  in  interest  assented.  There  was  noth- 
ing done  in  contravention  of  any  rule  of  law  or  practice ;  no  body 
had  any  right  to  complain  of  it,  because  no  one  was  injured;  it  was 
sanctioned  by  the  plaintiffs  in  error  and  acquiesced  in  by  them  until 
the  trial  of  this  cause.  No  motion  was  made  to  set  aside  the  pro- 
ceedings on  the  amicable  scire  facias  or  the  sheriff's  sale  under 
them  ;  no  writ  of  error  brought  to  reverse  them  ;  they,  therefore, 
by  their  acts  and  their  neglects,  expressly  or  tacitly,  waived  all 
objections,  if  any  existed.  A  judgment  erroneous  is  good  until 
reversed  :  2  S.  &  R.  142 ;  4  Id.  467.  The  record  was  evidence 
against  them:  1  Sulk.  276,  290;  Holt  292;  11  S.  &  R.  168. 

Whether  the  sheriff's  deed  poll  duly  acknowledged  and  certified 
under  the  seal  of  the  proper  court,  as  directed  by  the  Act  of  the 
6th  of  April  1802,  would  have  been  full  and  conclusive  evidence 
against  the  person  named  in  the  execution  under  which  the 
premises  were  sold,  is  not  a  question  now  made.  There  was  no 
error  in  the  admission  of  the  amicable  scire  facias  and  the  proceed- 
ings on  it. 

The  second  bill  of  exception  was  to  the  admission  of  a  lease, 
proved  by  the  subscribing  witnesses,  from  J.  M.  Benner  and  1*. 
Benner,  Jr.,  to  John  Hall,  Jr.,  for  three  lots,  bearing  date  Novem- 
ber 26th  1824. 

The  defendant's  counsel  objected  to  it,  "because  Philip  Benner, 
Jr.,  and  J.  M.  Benner  had  no  right  to  make  a  lease.  They  had 
not  then  got  their  deed.  The  sheriff's  deed  recites  the  sale  as  made 
the  day  after  the  lease  purports  to  have  been  executed.  The  writ 
was  not  returned." 

It  is  true  a  man  cannot  grant  that  which  he  hath  not,  or  more 
than  he  hath,  although  he  may  covenant  to  purchase  an  estate 
and  levy  a  fine  to  uses,  which  will  be  good :  Bac.  Max.  58 ;  Peck, 
sec.  65. 

A  lease  doth  properly  signify  a  demise  or  letting  of  land,  &c., 


June  1830.]  OF  PENNSYLVANIA.  407 

[Hall  v.  Benncr.] 

unto  another,  for  a  lesser  time  than  he  that  doth  let  it  hath  in  it : 
Shop.  T.  266 ;  Plow.  421,  432. 

Assuming  the  above  authorities  to  be  law,  it  would  seem  to  be 
very  clear  that  a  man  cannot  make  a  valid  lease  to  another  who  is 
in  possession  of  land,  when  such  lessor  has  no  interest,  title,  pos- 
session or  right  of  possession  in  the  premises  he  lets. 

The  tenant,  under  a  lease  made  by  such  a  lessor,  should  never 
be  estopped  from  disputing  his  landlord's  title.  To  a  tenant  so 
circumstanced,  the  doctrine  of  estoppel  is  totally  inapplicable, 
yet  the  lease  was  evidence.  The  acts  and  declarations  of  a  party 
in  interest,  and  to  the  suit,  are  evidence  against  him :  Whart. 
Dig.  365,  pi.  405;  1  Dall.  65;  Marshall  v.  Sheridan,  10  S.  &' 
R.  268. 

The  evidence  was,  therefore,  properly  admitted,  both  as  the  deed 
and  as  the  declaration  of  the  defendants  below,  having  a  direct  rela- 
tion to  the  matters  in  dispute. 

The  third  exception  was  to  the  admission  of  the  evidence  of  Wil- 
liam Ward  and  James  M.  Petrikin,  to  prove  that  the  property  had 
been  struck  down  before  the  lease  was  executed,  and  that  the  date 
of  the  lease  is  a  mistake. 

Prima  facie  every  deed  is  supposed  to  be  made  the  day  it  bears 
date :  3  Liv.  348  ;  1  Sel.  Pr.  422. 

But  it  takes  effect  from,  and  therefore  has  relation  to,  the  time, 
not  of  the  date,  but  of  its  delivery  ;  and  this  is  always  presumed  to 
be  the  time  of  its  date,  unless  the  contrary  do  appear.  The  time 
of  delivery  is  material,  and  is  always  to  be  tried  by  a  jury :  Shep. 
T.  72. 

It  would  be  easy  to  cite  authorities  on  this  point  and  to  illustrate 
the  position  laid  down  by  a  great  variety  of  cases,  but  it  would  be  a 
useless  labor,  as  no  doubt  can  be  entertained  of  its  correctness.  It 
is,  however,  contended  that  admitting  the  law  to  be  as  above  stated, 
the  defendant  in  error  was  estopped  by  the  recital  in  the  sheriff's 
deed,  that  the  sale  was  made  on  the  27th  November  1824,  from 
showing  it  was  made  on  any  other  day.  A  general  recital  is  n^« 
estoppel,  yet  a  recital  of  a  particular  fact  is  so :  1  Show.  50  ;  '2 
Leon.  11 ;  3  Id.  118.  And  the  recital,  to  be  an  estoppel,  must  be 
material:  2  Leon.  11;  3  Id.  118.  The  recital  of  the  day  when 
the  property  was  sold  is  not  material,  and  therefore  the  defendant 
in  error  was  not  estopped  from  showing  the  truth.  A  man  i> 
estopped  to  say  anything  against  his  own  deed :  Co.  Lit.  W-j  l> :  - 
Bl.  Com.  295;  Co.  Lit.  252  a.  But  this  was  not  the  deed  nf  tlu- 
defendant  in  error.  It  was  the  deed  of  the  sheriff"  to  him  ;  it  was 
the  deed  of  a  ministerial  officer  authorized  to  make  the  sale,  whose 
mistakes  in  the  execution  of  his  duties  should  never  be  permitted  to 
prejudice  the  rights  of  the  grantee  by  way  of  estoppel.  There  was 
no  error  in  admitting  this  evidence. 


408  SUPREME  COURT  [Sunbury 

[Hall  v.  Benner.] 

The  fourth  exception  was  to  the  rejection  of  the  following  evi- 
dence offered  by  the  plaintiffs  in  error : 

"  That  considerable  part  of  the  shop  is  built  outside  of  the  town 
lots,  and  on  the  right  conveyed  by  Smith  to  Hall,  the  elder;  that  on 
the  26th  January  1825,  John  Hall,  the  elder,  conveyed  to  John 
Hall,  Jr.,  all  his  right  under  Smith's  deed." 

"  This  evidence  was  objected  to  and  overruled  by  the  court. 
First.  Because  the  defendant  is  a  tenant  and  cannot  dispute  the 
right  of  his  landlord.  And  second.  Because  the  written  papers 
vest  the  title  of  the  property  in  the  purchaser  at  sheriff's  sale." 

If  the  opinion  already  given  on  the  previous  exceptions  is  cor- 
rect, it  is  clear  that  the  plaintiffs  should  have  been  allowed  to  prove 
what  they  offered ;  they  had  proved  by  William  Pettit,  "  that  he 
was  present  with  Benner  and  Hall ;  heard  Benner  pressing  Hall  to 
take  a  lease  ;  Hall  down-spirited  ;  Benner  said  he  was  going  away 
next  day,  and  wanted  it  fixed.  This  was  after  the  property  had 
been  sold.  Benner  said  he  might  have  it  till  spring  on  easy  terms  ; 
did  not  want  to  turn  him  out ;  wanted  him  to  take  it ;  Benner  said 
if  he  did  not  take  a  lease,  he  would  be  under  the  necessity  of 
removing  him  and  obtaining  possession  by  the  sheriff;  Hall  said  he 
wanted  to  see  Mr.  Potter ;  it  was  on  the  day  before  Benner  was  to 
start  away;  it  was  in  the  afternoon  of  the  day." 

This  evidence  of  Pettit,  corroborated  as  it  was  by  Petrikin  and 
Ward,  was  sufficient,  connected  with  the  circumstances  under  which 
the  lease  was  obtained,  to  induce  a  belief  that  the  lease  was  pro- 
cured by  management ;  by  a  snggcstio  fahi,  in  alleging  he  had 
purchased  the  whole  at  sheriff's  sale ;  that  he  had  a  right  to  dis- 
possess them  of  the  whole,  and  his  hurrying  them  into  the  execu- 
tion of  the  lease,  without  an  opportunity  of  consulting  their  counsel 
or  friends,  as  they  expressed  a  desire  to  do,  a  measure  suggested  to 
Benner  by  Mr.  Petrikin,  as  a  safe  one,  if  he  intended  to  hold  the 
property. 

The  plaintiffs  in  error  were  not  such  tenants  as  precluded  them 
from  showing  what  they  offered  to  prove.  The  very  question 
trying  was,  whether  the  written  papers  vested  the  title  of  the 
property  in  the  purchaser  at  sheriff's  sale?  If  they  did — what 
property  ?  Was  the  tilt-hammer  and  water-right  conveyed  by 
Smith  to  Hall,  Sr.,  included  in  the  sale  made  by  the  sheriff?  Was 
anything  more  sold  than  three  lots?  If  not — did  the  three  lots 
extend  westerly  beyond  the  water's  edge  of  Spring  creek  ?  If  they 
did,  how  far — did  they  include  the  shop,  tilt-hammer  and  dam  ? 
A  solution  of  these  questions  could  only  be  made  by  an  application 
of  the  description  of  the  property  contained  in  the  deed,  to  the  pro- 
perty claimed  under  it.  The  situation  of  the  property  claimed, 
and  the  relation  it  bore  to  the  property  described,  could  only  be 
ascertained  by  parol  proof.  The  court,  therefore,  erred  in  reject- 
ing the  evidence. 


June  1830.]  OF  PENNSYLVANIA.  409 

[Hall  v.  Benner.] 

The  court  instructed  the  jury  that  the  plaintiff  below  had  shown 
a  right  to  recover  on  every  ground:  First,  as  landlord.  It  is  a 
sacred  principle  of  law,  that  the  tenant  shall  not  dispute  the  title 
of  his  landlord.  Second.  That  the  fair  and  correct  construction  of 
the  defendant's  conveyances,  mortgages,  judgment,  sale  and  sheriff's 
deed,  vested  the  right  of  the  whole  property,  whatever  it  was,  in 
the  plaintiff;  and  that  the  conveyance  by  Smith  was  an  appurte- 
nance which  attached  to  the  property. 

To  this  charge  the  plaintiffs  in  error  excepted,  and  this  forms 
the  fifth  bill  of  exceptions. 

It  may  be  true,  as  a  general  principle  of  law,  that  the  tenant 
shall  not  dispute  the  title  of  his  landlord.  Yet  the  application  of 
this  general  principle  is  restricted  to  cases  in  which  the  lease  has 
been  fairly  obtained,  without  any  misrepresentation,  management 
or  fraud. 

A  lease  unfairly  obtained,  will  not  prevent  the  lessee  from  con- 
testing the  title  of  the  lessor :  Brown  v.  Dysinger,  1  Rawle  408, 
415,  and  the  authorities  there  cited.  In  that  case,  the  only  evi- 
dence of  unfairness  was  that  Walker  threatened  to  turn  Brown  out 
of  possession  if  he  did  not  execute  a  lease ;  and  that  Brown  was 
then  very  sick  with  the  consumption,  and  died  sometime  the  follow- 
ing month.  The  case  under  consideration  is  much  stronger  in 
favor  of  the  tenant  than  that  of  Brown. 

The  correctness  of  this  observation  will  be  manifest  by  a  refer- 
ence to  the  testimony  recited,  in  giving  the  opinion  in  this  cause, 
on  the  third  and  fourth  bills  of  exceptions.  Benner  urged  the  exe- 
cution of  the  lease  on  the  ground  that  he  had  a  right  to  the  pos- 
session of  the  whole  of  the  premises,  and  that  he  had  the  right  to 
remove  Hall  by  the  sheriff,  and  refused  Hall  time  to  consult  his 
counsel. 

This  was  a  suggestion  of  a  falsehood  calculated  to  mislead  Hall. 
Benner  had  at  the  time  no  title  to  the  land.  The  levari  facias  was 
not  then  returned.  If  the  property  had  been  then  struck  off  to 
him,  there  was  no  record  of  it.  And  if  there  had  been,  the  sale 
was  liable  to  be  set  aside  at  the  instance  of  Hall,  or  his  creditors  ; 
or  to  be  defeated  by  his  (Benner's)  neglect  to  comply  with  the  con- 
ditions of  sale. 

Until  the  sheriff's  deed  to  him  was  acknowledged,  he  could 
legally  take  no  step  to  obtain  possession  ;  and  even  then  of  nothing 
not  contained  in  the  deed.  When  acknowledged,  he  must  have 
given  three  months'  notice  before  he  could  have  a  jury  called  to 
dispossess  Hall,  which  would  have  prevented  him  from  removing 
him  by  the  sheriff  forthwith,  as  it  was  evidently  insinuated  he  had 
a  power  to  do.  The  proposition,  which  was  made  on  the  2t>th  of 
November  1824,  was  to  lease  it  to  him  until  spring  on  easy  terms; 
when  it  appears  that  the  sheriff's  deed  to  Benner  was  not  acknow- 
ledged until  the  26th  April  1825. 


410  SUPREME  COURT  [Sunbury 

» 

[Hall  v.  Benncr.] 

If  this  case  docs  not  exhibit  all  those  features  of  management, 
unfair  and  uncaridid  conduct,  as  well  as  misrepresentation  on  the 
part  of  Benner,  I  should  be  at  a  loss  to  conceive  one  what  would. 
It  is  evident  that  Hall  was  taken  by  surprise,  and  was  artfully 
inveigled  and  hurried  into  the  execution  of  the  lease,  without  any 
opportunity  of  consulting  his  friends  or  his  counsel,  which  he 
desired  to  do. 

There  is  a  wide  difference  between  the  case  of  a  lease  from  a 
person  having  title  or  possession ;  and  that  of  a  lease  from  one 
having  no  title,  no  possession  or  no  right  to  possession,  as  to  the 
conclusivencss  of  the  evidence.  In  the  former  case,  generally 
speaking,  the  tenant  would  be  estopped  from  disputing  his  land- 
lord's title,  unless  fraud,  mistake  or  imposition  be  clearly  proved. 
In  the  latter  case,  the  lessee  would  not  be  concluded  by  the  lease, 
because  the  obtaining  a  lease  under  such  circumstances,  would 
generally  be  considered  as  unfairly  procured.  The  plaintiffs  in 
error,  on  the  facts  disclosed  by  the  defendant  in  error,  should  have 
been  allowed  to  have  impeached  the  lease  ;  and  the  testimony  of 
Pettit  and  the  other  witnesses  should  have  been  submitted  to  the 
jury. 

The  court  unquestionably  erred  in  the  instructions  given  to  the 
jury  on  the  second  point.  The  fair  and  correct  construction  of  the 
defendant's  conveyances,  mortgages,  judgment,  sale  and  sheriff's 
deed,  arising  on  the  face  of  the  papers,  without  reference  to  any 
extrinsic  circumstance,  is  that  nothing  more  was  sold  under  the 
mortgage  than  what  was  contained  in  the  description  of  the  pro- 
perty mortgaged,  and  that  nothing  more  vested  in  the  purchaser. 

The  mortgage  was  for  three  lots,  which  John  Hall,  the  elder,  had 
conveyed  to  John  Hall,  Jr.  Those  lots  were  described  by  Nos.  130, 
131  and  132,  in  the  town-plot  of  Bellefonte,  with  clearly  designated 
boundaries ;  each  containing  sixty  feet  in  front  on  Spring  street, 
and  extending  thence  westwardly  to  the  water's  edge  of  Spring 
creek.  On  the  face  of  the  title-papers,  these  three  lots  only  were 
conveyed  to  Benner.  The  sale  was  effected  by  a  proceeding  on  the 
mortgage.  The  sheriff  could  sell  no  property  which  was  not  de- 
scribed in  the  mortgage,  and  conveyed  by  it,  unless  from  its  very 
nature  and  quality,  it  was  necessary  to  the  enjoyment  of  what  was 
actually  described. 

If  a  mill  had  been  within  the  boundaries  of  the  lots  sold,  and  it 
had  been  granted,  the  water  as  used  for  the  mill  would  have  passed 
as  appurtenant  to  it :  3  Salk.  40. 

But  if  a  man  sells  a  mill  cum  pcrtinentiin,  and  a  jury  find  a  kiln 
was  occupied  with  the  mill  for  many  years,  the  kiln'should  not  pass 
by  those  words,  for  it  might  be  a  lime  kiln  ;  and  might  have  no 
relation  to  the  mill ;  but  if  the  jury  had  found  it  to  be  a  malt  kiln, 
it  might  be  otherwise  :  Shep.  Touch.  89-DO. 


June  1830.]  OF  PENNSYLVANIA.  411 

[Hull  v.  Bennef.J 

Strictly  speaking  lands  cannot  be  appurtenant  to  lands,  or  a 
messuage  to  a  messuage:  Plow.  170;  1  Sil.  Ab.  (J1. 

But  the  vford  pertens  may  be  taken  in  the  sense  of  usually  letten 
or  occupied  with  the  land  :  Plow.  170.  Lands  shall  pass  on  a  lca.se 
or  devise  of  a  house  as  pertaining  to  the  same,  when  it  hath  b<-en 
used  and  occupied  with  it,  ten  years  or  more:  which  is  i-ljudgi-d  a 
Buflicient  time  to  make  it  appertaining  to  the  house:  Cro.  Eli/,. 
704.  A  grant  of  a  manor  cum  pertinentiis,  it  is  said,  will  pa.is  all 
things  belonging  to  the  manor:  Owen's  R.  31. 

But  in  all  these  cases  it  must  be  ascertained  by  parol  proof  what 
was  usually  letten  or  occupied  with  the  land,  the  messuage,  mill  or 
manor,  unless  the  extent  of  the  claim  appears  on  the  face  of  the 
paper  title ;  and  even  then  to  settle  what  lands,  what  waters,  what 
dams  or  races  have  been  used  and  occupied  as  appertaining  to  the 
property  purchased. 

All  these  are  questions  involving  matters  of  fact,  not  appearing 
on  the  face  of  the  title  papers,  and  should  have  been  submitted  to 
the  jury  for  their  decision.  The  court  excluded  very  important 
evidence  as  to  the  relative  situation  of  the  two  properties ;  refused 
to  let  the  plaintiff's  in  error  prove  that  the  shop  was  partly  situated 
on  the  tract  bought  of  Smith,  and  not  included  in  the  mortgage, 
•which  went  to  shut  out  all  the  evidence  of  plaintiffs  in  error,  as  to 
their  title,  their  possession  and  occupancy  :  the  situation  of  the  dam, 
the  race,  and  the  land  purchased  of  Smith  ;  and  then  instructed  the 
jury  that  all  the  rights  vested  by  the  paper  title  in  the  defendants  in 
error ;  and  by  it  they  were  entitled  to  recover. 

Who  can  say  on  looking  over  the  paper  title,  which  was  the  most 
worthy,  the  property  derived  from  Smith,  or  that  derived  from 
Harris.  That  which  is  the  most  worthy  is  the  principal ;  and  when 
ascertained  by  a  grant  of  it,  that  which  is  less  worthy  or  incident, 
or  accessary  shall  pass  by  the  grant.  The  principal  will  not  pass 
by  the  grant  of  the  incident  or  accessary.  Acccssorium  non  diicit. 
aed  sequitur  suum  principale :  Shep.  Touch.  89. 

For  anything  that  appears  to  the  contrary,  the  right  derived  from 
Smith  may  be  the  principal.  The  deed  from  him  to  Hall,  senior, 
bears  date  the  2Uth  of  April  1806.  The  deed  from  Harris  to  Hall 
bears  date  the  27th  of  November  1807.  The  title  to  the  property 
purchased  of  Smith  is  above  a  year  and  six  months  older  than  that 
of  Harris  to  Hall.  The  title  to  the  property  acquired  by  the  pur- 
chase from  Smith  existed  in  Hall  independent  of  the  three  lots 
granted  by  Harris  to  him,  more  than  eighteen  months  prior  to  the 
title  acquired  from  Harris.  It  was  not,  therefore,  during  that  time 
appurtenant  to  the  three  lots  purchased  of  Harris.  If  it  ever  he- 
came  appurtenant  thereto,  when  and  how  'I  This  can  only  be  shown 
by  matter  in  pnis.  It  was  not  purchased  sis  a  necessary  appendant 
to  the  enjoyment  of  the  three  town  lots,  because  it  was  purchased 
Ion**  before  Hull  became  the  owner  of  the  three  town  lots.  From 


412  SUPREME  COURT  [Sunlury 

[Hall  v.  Benner.] 

all  that  appears,  the  property  purchased  of  Smith  was  the  principal, 
and  the  purchase  from  Harris  was  the  accessary  ;  and  requisite  to 
the  full  enjoyment  of  the  rights  purchased  of  Smith.  These  mat- 
ters may  be  made  to  wear  a  very  different  complexion  from  that 
which  they  exhibit  now  on  the  face  of  the  papers. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

Referred  to,  4  C.  170;  7  Wr.  169. 
Commented  on,  3  W.  403. 

Followed,  6  W.  45  ;  2  W.  &  S.  249 ;  6  Barr  163. 

The  principal  case  is  probably  the  one  referred  to,  9  C.  99  ;  as  1  P.  &  W. 
170. 


Cox  against  Norton. 

In  a  suit  brought  by  the  administrators  of  a  deceased's  estate,  to  recover 
the  purchase-money  of  land  sold  by  them  in  pursuance  of  an  order  of  the 
Orphans'  Court,  one  of  the  heirs  of  that  estate,  who  had  at  the  bar,  upon  the 
trial  of  the  cause,  released  all  his  interest  in  the  estute  to  another  of  the  heirs, 
is  a  competent  witness  for  the  plaintiffs. 

A  witness  who  swore  before  arbitrators  that  from  an  entry  in  his  book, 
which  he  had  then  before  him,  he  knew  an  occurrence  had  taken  place  on  a 
certain  day,  having  died  before  the  trial  of  the  cause  in  court,  it  is  competent 
to  prove  what  he  swore  before  the  arbitrators,  without  the  production  of 
the  book. 

The  fact  of  a  paper  having  been  given  in  evidence  before  arbitrators  with- 
out objection,  is  no  reason  why  it  should  be  received  upon  the  trial  of  the 
cause  in  court,  if  it  is  otherwise  illegal. 

WRIT  of  error  to  the  Special  Court  of  Mifflin  county  (Reed, 
president). 

This  was  an  action  of  debt  upon  a  bond  brought  by  John  Norton, 
who  survived  George  Ilanawalt,  against  Charles  Cox.  The  plaintiff, 
Norton,  and  Ilanawalt  were  the  administrators  of  Philip  Powell, 
deceased,  and  as  such,  by  an  order  of  the  Orphans'  Court,  sold  the 
real  estate  of  the  deceased  to  Charles  Cox,  the  defendant  below,  and 
took  his  bonds  for  the  purchase-money,  upon  one  of  which  this  suit 
was  brought. 

The  only  thing  to  be  tried  in  the  cause  was  the  genuineness  of  a 
receipt,  dated  22d  October  1824,  alleged  to  have  been  given  by 
George  Hanawalt  in  his  lifetime  to  the  defendant,  for  31100. 
Many  bills  of  exception  were  taken  to  the  admission  and  rejection 
of  evidence,  during  the  course  of  the  trial,  only  three  of  which  are 
material  to  be  stated. 

The  case  had  been  tried  before  arbitrators,  when  the  sub- 
scribing witness  to  the  receipt  testified  that  the  receipt  was  signed  by 
George  Ilanawalt  on  the  day  it  bears  date,  and  at  a  certain  place. 


June  I830.J  OF  PENNSYLVANIA.  413 

[Cox  v.  Norton.] 

A  witness  was  then  called  to  prove  that  on  the  day  the  receipt  bears 
date  George  Ilariawalt  was  at  another  place.  The  witness  brought 
his  day-book  before  the  arbitrators,  and  having  it  open  before  him 
he  said  that  from  an  entry  in  it  he  knew  that  George  Hanawult 
was  in  Waynesburg  that  day.  Before  the  cause  was  tried  in  court 
that  witness  died,  and  the  plaintiff  offered  to  prove  what  he  swore 
before  the  arbitrators.  The  witness  by  whom  it  was  offered  to  be 
proved  having  been  asked  whether  the  witness  before  the  arbitrators 
spoke  of  the  date,  independently  of  his  book,  answered,  ''  I  can't 
remember  that  he  undertook  to  speak  of  any  date  independently  of 
his  book  entry  which  he  opened." 

The  defendant  objected  to  the  evidence  on  the  ground  that  the 
book  was  not  produced.  The  objection  was  overruled  and  excep- 
tion taken  by  the  defendant. 

John  Hainan,  who  had  purchased  a  share  of  the  estate  of  Philip 
Powell,  deceased,  executed  a  release  of  it  at  the  bar  to  one  of  the 
other  heirs,  and  was  offered  as  a  witness,  to  which  the  defendant 
objected,  but  the  testimony  was  admitted,  and  exception  taken  by 
defendant. 

The  plaintiff  had  procured  a  statement  in  the  handwriting  of  Mr. 
Ralston  of  Philadelphia  of  money  which  the  defendant,  Cox,  had 
received  there.  The  defendant  gave  notice  to  the  plaintiff  to  pro- 
duce it  before  the  arbitrators ;  it  was  there  produced  and  read  in 
evidence  without  objection.  The  same  paper  was  produced  in  court 
on  notice,  and  the  defendant  offered  it  in  evidence  on  the  ground 
that  it  had  been  admitted  before  the  arbitrators  without  objection. 
The  plaintiff  objected  to  it,  the  court  overruled  it,  arid  sealed  a  bill 
of  exceptions  at  the  instance  of  defendant. 

Alexander  and  Potter,  for  plaintiff  in  error. — The  witness  before 
the  arbitrators  spoke  from  the  entry  in  his  book,  it  was  an  essential 
part  of  his  testimony  which  we  had  a  right  to  see  ;  giving  evidence 
of  what  the  witness  swore,  without  the  production  of  the  book,  was 
giving  parol  proof  of  what  was  in  writing:  Juniata  Bank  r.  Brown, 
5  S.  &  11.  226. 

John  Hainan  should  not  have  been  permitted  to  testify  :  he  was 
one  of  the  heirs  of  Powell  for  whose  use  the  suit  was  prosecuting: 
he  had  been  the  party  interested — had  been  engaged  for  several 
years  preparing  for  the  trial,  had  all  his  feelings  embarked  in  it. 
and  upon  the  trial  he  transfers  his  interest  in  the  suit  to  a  third  fx-r- 
fton,  and  does  not  release  to  the  party  in  the  cause.  He  being  a 
party  in  interest  was  liable  for  costs,  although  not  nominally  a  party, 
and  he  could  not  release  himself  from  that  liability. 

The  paper  in  the  handwriting  of  Mr.  Halston  would  have  shown 
where  the  defendant  got  the  money  for  which  the  receipt  was  given; 
and  having  been  read  in  evidence  before  the  arbitrators  without 
objection,  and  then  produced  in  court  by  the  plaintiff,  it  was  com- 
petent evidence. 


414  SUPREME  COURT  [Sunbury 

[Cox  v.  Norton.] 

Rlanchard  and  JIale,  for  defendant  in  error,  whom  the  court 
declined  to  hear. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — Of  the  nine  bills  of  exception  to  testimony  sealed 
by  the  court  below  at  the  instance  of  the  defendant's  counsel,  only 
three  were  relied  on  in  this  court.  The  suit  was  brought  by  Nor- 
ton and  Ilanawalt,  in  the  lifetime  of  the  latter,  to  recover  the  price 
of  a  tract  of  land  sold  by  them,  under  an  order  of  the  Orphans' 
Court,  as  administrators  of  Philip  Powell,  to  the  defendant.  John 
Hainan  was  entitled  to  the  share  of  one  of  the  heirs  of  Powell,  and 
having  executed  a  release  of  his  interest  to  another  of  the  heirs  was 
admitted  as  a  witness.  We  have  in  this  state  admitted  the  plaintiff 
in  the  cause  after  suit  brought ;  or  what  is  the  same  thing  in  sub- 
stance, a  man  who  contemplates  bringing  a  suit,  has  been  permitted 
to  assign  his  interest  and  be  a  witness.  I  have  always  believed, 
and  experience  strengthens  this  belief,  that  by  so  doing  we  have 
not  improved  the  administration  of  justice.  But  this  is  not  that 
case.  J.  ITaman  was,  perhaps,  not  at  all  interested  in  the  suit  try- 
ing. The  administrators  and  their  bail  were  liable  to  him  whether 
they  recovered  or  not ;  but  he  was  not  at  all  events  a  party — not 
liable  for  costs,  and  not  affected,  except  so  far  as  the  plaintiff  would 
be  less  able  to  pay,  if  he  did  not  succeed  in  this  suit ;  for  it  must 
be  remembered  that  the  whole  matter  in  dispute  was  the  amount 
paid  by  the  defendant  to  the  plaintiff;  or,  in  other  words,  whether 
a  receipt  produced  by  the  defendant  was  the  receipt  of  the  plaintiff. 
After  the  release  Hainan  was  a  witness  within  all  the  decisions  in 
this  and  other  states  made  since  releases  by  witnesses  were  known. 

This  cause  had  been  tried  under  our  Act  of  Assembly  before 
arbitrators,  and  on  that  trial  Anthony  Elton  had  been  examined  as 
a  witness ;  he  was  now  dead ;  what  he  swore  was  proved  by  a  wit- 
ness in  this  cause,  viz.  :  That  on  the  22d  day  of  October  1824,  he 
had  George  Ilanawalt's  horse  in  Waynesburg  (the  receipt  was 
dated  on  that  day),  that  George  Hanawalt  brought  the  horse  to  the 
shop  himself,  and  that  it  was  in  the  afternoon  of  that  day.  Wit- 
ness added,  Mr.  Elton  brought  in  his  day-book,  and  had  it  open 
when  he  gave  his  testimony,  and  said  u  I  cannot  say  that  he  relied 
on  his  book  and  not  on  his  memory  ;  I  don't  remember,  and  I  can't 
rcmcfmber  that  he  undertook  to  speak  of  any  date  independently  of 
his  book." 

The  objection  to  this  evidence  was  that  the  book  might  have 
been  produced  in  court  at  the  time  the  witness  gave  this  testimony. 
If  Mr.  Elton  had  been  alive  and  giving  testimony,  and  had  said 
he  could  fix  the  time  from  an  entry  in  his  day-bouk,  there  might 
have  been  some  pretence  that  the  other  party  on  their  cross-exami- 
nation should  have  the  advantage  of  seeing  the  day-book  and 
the  entries  arid  the  regularity  of  those  entries.  Though  1  do  not 


June  1830.]  OF  PENNSYLVANIA.  415 

[Cox  v.  Norton.] 

know  that  such  has  boon  the  practice.  A  witness  called  to  fix  a 
date,  often  says,  he  has  referred  to  his  books  after  lie  had  been 
subpoenaed,  as  to  the  date  of  a  deed,  note  or  receipt  given  at  the 
time,  and  such  book  or  paper  is  sometimes  produced,  and  sometimes 
not.  That  is  not  this  case;  here  Mr.  Elton  was  dead,  and  what  he 
said  was  to  be  proved,  not  the  ground  of  his  belief  or  why  ho  said 
so.  The  witness  might  not  know  the  writing  of  Mr.  Elton  ;  might 
have  never  seen  the  inside  of  this  book  ;  not  know  it  again  if  pro- 
duced. All  that  he  offered  to  do  was  to  prove  in  court  what  Mr. 
Elton  had  sworn,  that  he  undertook  to  do,  and  was  permitted  to  do, 
and  there  is  no  error  in  receiving  the  testimony. 

After  very  much  testimony  pro  and  con  had  been  given  as  to 
this  receipt  (which  was  dated  22d  October  1824,  and  for  SHOD). 
The  plaintiff  called  a  witness  who  stated,  and  no  objection  taken  to 
it,  "  Cox  stated  he  had  got  the  money  in  Philadelphia,  and  had 
lent  it  to  Mr.  Hammond  or  Mr.  Lusk  ;  that  he  had  it  at  the  bank, 
and  had  borrowed  some  from  a  man  in  Millerstown  ;  he  said  that 
was  the  money  he  paid  to  Hanawalt."  A  third  person  had  pro- 
cured in  Philadelphia  a  statement  from  11.  Ralston,  of  payments 
made  to  the  defendant,  on  account  of  a  legacy,  viz.  :  in  March 
1823,  $500,  in  June  1823,  $925,  and  had  given  this  to  the  plain- 
tiff's attorney.  When  the  cause  was  before  arbitrators,  the  de- 
fendant's counsel  had  asked  the  plaintiffs  for  this  paper,  after 
stating  that  he  had  no  right  to  it,  he,  however,  gave  the  paper,  and 
it  was  shown  to  the  arbitrators.  After  the  appeal,  viz. :  at  the  trial 
in  court,  the  defendant  called  for  this  paper;  plaintiff's  counsel 
said  he  had  it,  but  would  submit  to  the  court  whether  it  was 
evidence,  and  handed  it  to  the  court,  who  after  looking  at  it,  gave 
it  back,  and  decided  it  was  not  evidence,  and  clearly  it  was  not;  it 
was.  in  three  lines  having  no  reference  to  this  or  nny  other  cause ; 
a  mere  short  memorandum,  not  sworn  to,  nor  even  certified  to  be 
correct ;  but  it  was  argued  here,  that  having  been  before  the  arbi- 
trators, that  made  it  evidence  on  the  appeal.  If  whatever  is 
admitted  by  arbitrators,  produced  and  not  objected  to  before  arbi- 
trators, is  to  be  evidence  on  the  appeal,  it  will  make  a  great  altera- 
tion in  the  rules  of  evidence  in  our  courts,  or  rather  we  will  have 
a  different  set  of  rules  in  every  case  of  appeal.  Whenever  an 
account  is  admitted  to  be  due,  or  a  paper  to  be  genuine,  before 
arbitrators,  perhaps  the  proof  of  this  may  generally  be  evidence  in 
court.  The  admission  or  confession  of  the  party  is  almost  always 
evidence,  no  matter  where  it  was  made.  This  is  not  that  ease. 
Arbitrators  under  our  Act  of  Assembly,  are  the  judges  of  what  is 
admissible  as  evidence,  as  well  as  of  the  weight  and  effect  of  that 
evidence ;  no  bill  of  exception  to  testimony  is  taken  before  them, 
the  only  redress  from  any  and  every  error  of  theirs  is  the  appeal  to 
court,  and  this  appeal  is  given  as  much  for  the  purpose,  that  the 
last  solemn  final  decision  of  the  cause  may  be  hail  on  legal  testi- 


416  SUPREME  COURT  [Sunbury 

[Cox  v.  Norton.] 

mony,  and  nothing  but  legal  testimony,  as  for  any  other  purpose. 
Much  is  heard  by  the  arbitrators  which  ought  not  to  go  before 
them,  to  contend  about  the  admissibility  of  evidence  before  men 
unacquainted  with  the  rules  of  evidence,  and  the  principles  upon 
which  they  are  founded,  is  irksome,  useless  sometimes,  and  not 
seldom  injurious  to  the  client;  if  the  cause  is  decided  erroneously, 
the  party  appeals,  and  the  counsel  know,  and  must  know  that  in 
court  on  the  appeal,  no  other  evidence  will  or  can  be  received,  ex- 
cept what  ought  and  would  have  been  received,  if  it  never  had  been 
before  arbitrators.  The  confessions  or  admissions  of  a  party  are 
generally  evidence  against  him,  no  matter  when  they  are  made,  but 
paper  statements,  parol  or  hearsay  evidence  from  third  persons,  or 
by  witnesses,  are  to  be  decided  on  by  fixed  and  settled  principles. 

It  was  said,  however,  that  the  party  here  was  surprised ;  that  if 
he  had  not  believed  this  paper  would  be  produced,  and  read  without 
objection,  he  would  have  taken  the  deposition  of  R.  Ralston  ;  but 
he  had  no  right  to  believe  any  such  thing ;  it  is  a  first  attempt  to 
alter  the  law  in  this  respect,  and  the  alteration  attempted  is  too 
pregnant  with  evil,  to  receive  any  sanction  from  this  court.  That 
Ralston  paid  defendant  $500,  and  $900,  at  the  periods  of  eighteen 
and  fifteen  months  before  the  date  of  this  receipt,  was  very  weak 
evidence,  if  evidence  at  all,  of  the  payment  claimed  by  the  defend- 
ant. If  a  man  could  get  clear  of  a  debt  by  proving  that  he  had 
once  the  means  by  paying  it,  we  should  have  a  new  chapter  of 
evidence,  and  new  principles  of  decision,  and  the  debts  of  those 
who  are  rich,  or  who  are  in  business  by  which  much  money  passes 
through  their  hands,  would  be  easily  paid ;  in  general  such  proof 
would  not  be  admissible.  But  it  is  said  in  this  case  the  plaintiffs 
themselves  had  given  some  evidence  on  this  subject  and  had  intro- 
duced it.  But  now  the  plaintiff  seems  to  have  admitted  the  fact, 
that  he  got  money  in  Philadelphia;  but  they  had  proved  that  the 
defendant  said  he  had  lent  that  money.  The  man  to  whom  he  said 
he  had  lent  it  (Mr.  Hammond),  was  in  court,  a  witness  in  the  cause, 
he  could  tell  whether  he  ever  had  it  or  repaid  it ;  Millerstown  was 
in  the  adjoining  county ;  the  man  from  whom  he  got  the  money 
there  was  not  offered ;  the  bank  was  in  town,  its  officers  or  books 
were  not  resorted  to ;  there  was  no  attempt  to  give  the  only 
material  evidence  on  this  point.  (I  do  not  say  it  was  evidence  un- 
less plaintiff  had  proved  something  which  made  it  so),  nor  of  giving 
evidence  directly  bearing  on  what  plaintiff  had  proved ;  it  is  a 
sheer  attempt  to  subject  the  Common  Pleas  to  the  rules  and  prac- 
tices and  irregularity  of  trials  before  arbitrators.  The  court  below 
were  right  on  this  point  also. 

Judgment  affirmed. 

Referred  to,  3  R.  410. 
Followed,  3  P.  &  W.  44. 


June  1830.]  OF  PENNSYLVANIA.  417 


McKennan  et  al.  against  Doughman. 

All  agreements  for  the  sale  and  purchase  of  land,  are  consummated  and 
extinguished  by  the  deed. 

If  therefore  the  grantor  makes  a  deed  to  the  grantee,  which  contains  a 
general  warrantee  of  title,  he  cannot  afterwards  show  by  parol,  that  an  agree- 
ment was  made  a  few  days  before,  that  the  grantee  was  to  patent  the  land. 

The  purchase-money  due  the  Commonwealth,  is  an  encumbrance  which 
may  be  set  up  as  a  defence  to  the  payment  of  bonds  given  for  land,  which  the 
f»~vt.'::r, covenanted  to  convey  clear  of  encumbrances. 

WRIT  of  error  to  Mijflin  county. 

This  was  an  action  of  debt,  brought  by  Stephen  Doughman 
against  Patrick  McKennan  and  James  Henderson,  on  two  bonds, 
one  conditioned  for  the  payment  of  50Z.  on  the  1st  April  1822,  the 
other  for  the  payment  of  62?.  10s.  on  the  1st  April  1823.  These 
bonds  having  been  read  to  the  jury,  the  plaintiff  rested. 

The  defendants  then  proved  that  the  consideration  of  the  bonds 
was  a  tract  of  land  sold  by  Doughman  to  McKennan,  and  produced 
the  deed  therefor,  dated  1st  April  1815,  which  contained  a  general 
warranty  of  the  title.  The  defendants  then  further  showed  by  cer- 
tified copies  and  certificates  from  the  Land  Office  that  the  purchase- 
money  was  still  due  to  the  Commonwealth,  and  that  no  patent  had 
ever  issued  for  the  land. 

To  rebut  this,  the  plaintiff  offered  to  prove  that  the  bargain 
between  him  and  McKennan  was  that  McKennan  was  to  patent 
the  land  himself. 

To  this  evidence  the  defendants  objected  ;  the  court  admitted 
the  evidence  and  sealed  a  bill  of  exception. 

The  witness  then  said :  "  In  the  last  week  of  March,  or  1st  of 
April  1815,  he  met  McKennan,  who  told  him  that  Doughman  had 
thrown  off  $200  from  the  price  of  the  land  for  patenting  it ;  the 
witness  told  him  he  thought  he  had  made  a  good  bargain  in  getting 
$200  for  that." 

On  his  cross-examination  the  witness  said  :  "  When  this  conver- 
sation took  place,  McKennan  was  then  at  the  bank  to  get  the  hand- 
money  to  pay  Doughman." 

A  witness  who  was  present  at  the  execution  of  the  bonds  and 
deed,  testified,  that  there  was  nothing  said  about  the  patenting 
then. 

The  defendants'  counsel  requested  the  court  to  charge  the  jury, 
"that  if  they  believe  that  the  conversation  which  took  place  be- 
tween McKennan  and  the  witness  was  before  the  execution  of  the 
deed  and  bonds,  all  previous  agreements  between  the  parties  were 
consummated  by  the  deed,  and  the  defendants  have  shown  a  good 
defence  to  the  amount  of  the  patenting  money." 

To  which  the  court,  in  substance,  answered  :  ''  That  if  the  jury 
believed  the  parol  evidence,  and  that  the  agreement  between  Mc- 

1  p.  &  W.— 27 


41*  SUPREME  COURT  [Sunbury 

[McKennan  v.  Doughman.] 

Kennan  and  Doughman  was  that  McKennan  was  to  pay  for  patent- 
ing the  land,  such  agreement  would  not  be  extinguished  by  the 

J 

execution  of  a  deed  containing  a  clause  of  general  warranty  ;  that 
the  patenting  money  was  an  encumbrance  upon  the  land ;  and  if 
the  jury  disbelieved  the  parol  evidence,  they  should  defalk  the 
amount  thereof  from  the  bonds ;  if  they  believed  it,  they  should 
find  the  whole  amount  of  the  plaintiff's  claim." 

The  admission  of  the  parol  evidence,  and  the  opinion  of  the 
court,  were  assigned  as  error. 

Fisher,  for  plaintiff  in  error. — The  conversations,  as  testified  by 
the  witness,  must  have  been  before  the  execution  of  the  deed,  and 
if  'so,  should  not  have  been  received ;  for  all  contracts  and  under- 
standings between  the  parties  were  consummated  by  the  deed.  No 
fraud  in  its  execution  was  alleged ;  parol  evidence  was,  therefore, 
inadmissible :  Thompson  t>.  White,  1  Dall.  424 ;  Snyder  v.  Sny- 
der,  6  Binn.  483;  Wallace  v.  Baker,  1  Id.  610;  Gilpin  v.  Conse- 
qua,  1  Pet.  C.  C.  85 :  Dinkle  v.  Marshall,  3  Binn.  587  ;  Heagy 
v.  Umberger,  10  S.  &  R.  339  ;  Christ  v.  Diffenbach,  1  Id.  464 ; 
Hain  v.  Kalback,  14  Id.  159 ;  Hamilton  v.  Asslin,  Id.  448 ;  Chris- 
tine v.  Whitehill,  16  Id.  98 ;  Bellinger  v.  Eckert,  Id.  422. 

Hale,  for  defendant  in  error. — The  parol  evidence  may  have 
been  received  to  explain  fraud  or  mistake,  for  the  warranty  had 
been  special  and  was  made  general  by  an  interlineation.  What 
takes  place  at  and  immediately  before  the  execution  of  a  deed  may 
be  proved  by  parol:  Campbell  v.  McClenachan,  6  S.  &  R.  171. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — (His  honor  here  stated  the  facts  of  the  case.)  The 
exception  to  this  decision  brings  before  us.  the  question  (and  it  is 
the  only  one  in  the  cause),  whether  the  parol  evidence  offered  was 
admissible  on  principles  heretofore  decided  and  recognised?  It  is 
to  be  remembered  the  evidence  was  not  presented  to  prove  what 
actually  passed  between  the  parties  at  the  time  of  or  immediately 
before  th*  execution  and  delivery  of  the  bonds  and  deed ;  nor  to 
prove  any  trick  or  fraud  practised  by  the  grantor,  nor  any  mis- 
tuke  by  the  person  who  drew  the  bonds  or  deed.  It  was  offered 
on  the  broad  ground  to  show  that  a  few  days  before  the  bonds  and 
deed  were  executed,  some  parol  agreement  was  made  between  the 
parties,  by  which  McKennan  was  to  patent  the  land.  It  does  not 
appear  that  anything  was  said  by  the  parties  on  the  subject 
when  the  deed  and  bonds  were  executed ;  no  article  of  agreement 
was  then  produced;  no  mistake  of  the  scrivener  pretended ;  no 
allegation  that  he  was  misinformed  by  any  of  the  parties  or  that 
he  misunderstood  or  disobeyed  his  instructions ;  on  the  contrary,  it 
appears  that  the  deed  was  amended  just  before  the  execution  for 


June  1830.]  OF  PENNSYLVANIA.  419 

[McKcnnan  w.  Dou^hman.] 

the  purpose  of  embracing  the  covenant  of  general  warranty  above 
stated ;  this  then  is  the  naked  case,  in  which  parol  evidence  was 
admitted  to  contradict  and  control  the  express  covenant  of  a  deed, 
freely  executed  and  delivered,  and  as  freely  accepted  ;  which  is 
contrary  to  the  general  rule,  always  adhered  to  in  this  state,  with 
very  few  enumerated  exceptions,  that  parol  evidence  shall  not  be 
admitted  to  destroy,  control,  add  to,  or  alter  a  written  instrument. 
Here,  the  deed,  altered  and  amended,  at  or  immediately  before  the 
execution,  was  clearly  the  consummation  of  all  previous  bargaining, 
and  contained  the  final  intent  and  agreement  of  the  parties.  These 
principles,  long  since  decided,  have  often  been  recognised  by  this 
court,  particularly  in  Cozens  v.  Stevenson,  5  S.  £  It.  421,  and  in 
Collan  v.  I  locker,  1  Itawle  108. 

Judgment  reversed,  and  a  venire  facias  de  novo   awarded. 

Referred  to,  2  W.  202. 
Commented  on,  2  P.  &  W.  530 
Followed,  3  II.  72. 


Diemer  ayainst  Sechrist. 

A  presumption  of  satisfaction  from  lapse  of  time,  arises  in  the  case  of  an 
administration  bond  ;  and  the  computation  runs  from  the  period  when  the 
money  was  demand  able. 

WRIT  of  error  to  the  Common  Pleas  of  MiJHin  county. 

This  suit  was  brought  on  the  administration-bond  of  the  defend- 
ant, Christian  Sechrist,  one  of  the  administrators  of  Christian 
Sechrist,  Sr.,  deceased,  by  Peter  Sechrist,  one  of  the  heirs. 

The  plaintiff  gave  in  evidence  the  bond  dated  10th  May  1707  ; 
the  inventory  amounting  to  745L  16s.  2</.,  filed  loth  August  17i>7  ; 
an  administration  account  of  the  defendant  and  his  co-administra- 
tors, filed  7th  January  1803,  showing  a  balance  in  the  hands  of 
accountants  of  145b7.  18s.  Wd. ;  and  also,  their  supplementary 
administration-account,  filed  the  20th  August  1805,  showing  a  bal- 
ance in  their  hands  of  1585/.  7s.  \Qd. 

The  plaintiff  having  given  this  evidence,  the  defendant's  counsel 
requested  the  court  to  instruct  the  jury  that  the  common-law  lim- 
itation was  a  bar  to  the  plaintiff's  recovery  under  the  evidence 
given. 

The  court  (TUirnside,  president),  being  of  this  opinion,  a  verdict 
and  judgment  was  rendered  for  the  defendant. 

The  opinion  of  the  court  was  assigned  as  error. 

Wilson  and  7'oMr,  for  plaintiff  in  error. — An  administration- 
bond  is  not  embraced  within  the  reason  of  the  law  which  bars  a 
recovery  after  twenty  years.  In  this  bond  there  is  no  time  fixed 


420  SUPREME  COURT  [Sunburg 

[Diemerf.  Sechrist.] 

for  the  payment  of  the  estate  to  the  heirs.  Although  the  defendant 
settled  an  account  in  1803,  and  again  in  1805,  yet  these  accounts 
do  not  appear  to  have  been  a  final  settlement  of  the  estate ;  he  has 
never  been  discharged  by  the  Orphans'  Court,  and  is  therefore  yet 
the  administrator  of  the  estate  of  the  deceased,  and  may  have 
recovered  money  of  the  estate  up  to  the  time  when  this  suit  was 
brought.  An  administrator  is  a  trustee,  and  holds  the  estate  in 
trust  for  the  heirs,  and  on  this  ground  the  limitation  does  not  ap- 
ply ;  for  although  an  administrator  may  plead  the  statute  against  a 
creditor,  yet  he  cannot  do  so  against  the  heir  or  next  of  kin :  De~ 
couche  v.  Savetier,  3  Johns.  Ch.  190 ;  Arden  v.  Arden,  1  Id.  313 ; 
Norton  v.  Turvil,  2  P.  Wms.  145  ;  Farrington  v.  Knightly,  1  Id. 
549  ;  Johnston  v.  Humphreys,  14  S.  &  R.  394 ;  Kane  v.  Blood- 
good,  7  Johns.  Ch.  90. 

Hale,  for  defendant  in  error,  whom  the  court  declined  to  hear. 

PER  CURIAM. — A  presumption  of  satisfaction  from  lapse  of  time 
arises  in  the  case  of  every  species  of  security  for  the  payment  of 
money,  whether  bonjl,  mortgage,  judgment  or  recognisance ;  and 
the  computation  runs  from  the  period  when  the  money  was  de- 
inandable.  The  plaintiff  was  entitled,  if  not  before,  yet  certainly 
at  the  settlement  of  the  administration-account  in  1805,  and  with- 
out anything  to  rebut  the  presumption,  he  is  clearly  too  late  with 
his  suit  in  1826.  He  relies  on  the  fact  that  the  settlement  before 
the  register  was  not  confirmed  by  the  Orphans'  Court ;  but  is  there 
the  less  room  for  a  presumption  of  satisfaction,  because  the  adminis- 
trators were  not  called  on  to  perfect  their  account  ?  It  is  unneces- 
sary to  say  that  the  limitation  runs  from  the  time  when  the  parties 
interested  are  first  entitled  to  demand  an  account — that  point  will, 
when  it  arises,  merit  consideration,  but  we  confidently  assert  that 
the  arrest  of  a  judgment  actually  in  progress,  strengthens,  rather 
than  weakens  the  presumption  of  compromise  and  satisfaction. 

Judgment  affirmed. 

Referred  to,  2  W.  222;  7  C.  422;  4  Smith  466. 
Affirmed,  12  Smith  157. 


June  1830.]  OF  PENNSYLVANIA.  421 


Bryan  et  al.  against  McCulloch. 

The  oath  upon  which  to  ground  a  writ  of  error,  must  be  made  by  the  party, 
and  it  is  not  sufficient  if  made  by  the  attorney. 

Tins  was  a  writ  of  error  to  the  Common  Pleas  of  Mifftln  county. 

Hale,  for  defendant  in  error,  moved  to  quash,  because  the  affi- 
davit to  ground  the  writ  of  error  was  made  by  the  attorney,  and 
not  by  the  party,  as  required  by  the  Act  of  Assembly. 

Potter,  contra,  insisted  that  a  majority  of  the  precedents  are  in 
favor  of  the  practice  pursued  in  this  particular  instance. 

Copy  of  the  affidavit : 

Bryan       ")       W.  W.  Potter,  the  attorney  and  counsel  of  W.  P. 

v.          >  and  T.  M.  Bryan,  who  did  not  reside  in  the  county 

McCulloch.  J   of  Miffiin,  and  who  were  not  present  at  the  trial  of 

the  cause,  being  duly  sworn,  doth  depose  and  say  that  the  above 

writ  of  error  is  not  applied  for  for  the  purpose  of  delay. 

W.  \Y.  POTTER. 
Sworn  and  subscribed  the  22d  January  } 

1819,  before  me,  an  associate  judge  > 

of  MifHin  county.       JOHN  OLIVER.    J 

PER  CURIAM. — The  decisions  on  this  point  have  been  inconsist- 
ent, because  it  was  not  deemed  sufficiently  important  to  receive 
much  consideration ;  and  convenience  requires  that  the  practice  in 
regard  to  it  be  settled.  We  have,  therefore,  carefully  examined  the 
words  of  the  act,  and  find  that  they  peremptorily  require  the  affi- 
davit to  be  made  by  the  party.  This  will  doubtless  occasion  no 
small  degree  of  trouble  and  perhaps  vexation ;  but  were  we  to  be 
drawn  from  the  plain  direction  of  the  law  by  anything  less  than 
absolute  necessity,  it  would  be  impossible  to  predict  the  point  at 
which  we  should  stop.  Shall  the  attorney  be  authorized  to  make 
the  oath  in  all  cases,  or  only  where  his  clients  reside  out  of  the 
county,  or  out  of  the  state,  or  out  of  the  United  States  ?  These  are 
questions  which  none  but  the  legislature  can  solve ;  and  it  will,  no 
doubt,  interfere  to  remove  any  serious  inconvenience  that  may  be 
felt.  In  the  meantime  it  is  our  business  to  execute  the  law  as  we 
find  it ;  according  to  which  it  is  clear  that  the  writ  of  error  issued 
improvidently. 

On  hearing  the  opinion  of  the  court,  Jlalt'  said  that  as  his  object 
was  only  to  have  the  practice  settled,  he  would,  with  the  leave  of 
the  court,  waive  his  objection ;  and  the  motion  to  quash  was 
withdrawn. 

Commented  on.  2  \Vh.  182. 

Followed,  infra,  p.  4S1. 

Remedied  by  11  June  1S3'_'.  \ 3  P.  L.  611. 


42-2  SUPREME  COURT  [Sunbury 


McCullocli  against  Sample. 

Executors  who  were  authorized  to  sell  the  real  estate  of  their  testator,  for 
the  payment  of  certain  legacies,  sold  the  same,  and  afterwards  settled  tln'ir 
account  in  the  Orphans'  Court,  by  which  it  appeared  there  were  assets  to 
pay  the  legacies:  the  legatees  afterwards  filed  refunding  bonds,  and  brought 
suits  against  them  as  executors,  and  obtained  judgments.  Hdd,  that  such 
judgments  are  not  liens  on  the  real  estate  of  the  executor. 

ERROR  to  the  Common  Pleas  of  Mifflin  county. 

This  was  an  issue  directed  by  the  court  in  pursuance  of  the  Act 
of  Assembly,  to  try  the  right  to  money  in  the  hands  of  George 
McCullocli,  Esq.,  sheriff,  which  was  made  out  of  the  sale  of  the 
real  estate  of  Francis  Sample,  deceased. 

The  property  was  sold  for  $3350,  and  after  the  payment  of  a 
judgment  of  the  Huntingdon  Bank  v.  Francis  Sample,  and  the 
costs  of  sale,  there  remained  $528.18  in  the  hands  of  the  sheriff, 
which  was  claimed  by  the  plaintiffs  below  as  the  executors  of 
Francis  Sample,  deceased,  as  whose  property  the  land  was  sold,  on 
the  ground  that  there  was  no  lien  upon  the  property  payable  out  of 
the  proceeds  of  sale,  except  that  of  the  Huntingdon  Bank. 

David  Cummins,  Charles  Cummins  and  William  Cummins  claimed 
the  money  on  the  following  grounds :  David  Sample  died,  having 
first  made  a  will  and  testament,  by  which  he  appointed  Francis 
Sample  and  David  Sample,  his  sons,  to  be  his  executors,  and 
authorized  them  to  sell  his  real  estate,  and,  inter  alia,  bequeathed 
certain  legacies  to  his  grandchildren,  the  said  David  Cummins 
Charles  Cummins  and  William  Cummins.  The  said  executors  sold 
the  real  estate  of  their  testator  in  1801,  and  in  1806  settled  an 
administration  account,  by  which  it  appeared  there  was  a  large 
balance  in  their  hands.  In  1819  David,  Charles  and  William 
Cummins  each  filed  refunding  bonds,  and  brought  suit  against 
Francis  Sample  and  David  Sample,  executors  of  David  Sample, 
deceased,  to  recover  their  legacies  under  the  will  of  their  grand- 
father;  arid  on  the  llth  December  1819,  each  obtained  a  judgment 
for  3209.23,  and  each  issued  a  fieri  facias  to  November  Term  1820, 
against  the  estate  of  David  Sample,  deceased,  which  were  returned 
4'  not  executed,"  and  alias  fieri  facias  were  issued  in  1823,  and  were 
returned  "nulla  bona." 

David,  Charles  and  William  Cummins  in  the  court  below  con- 
tended that  these  three  judgments  were  liens  on  the  estate  of 
Francis  Sample  under  the  Act  of  21st  March  1772.  And  secondly, 
If  they  were  not,  the  court  would,  in  the  exercise  of  their  equita- 
ble powers,  decree  the  money  to  them,  under  the  speoial  circum- 
stances of  this  case. 


June  1830.]  OF  PENNSYLVANIA.  423 

[McCulloch  P.  Sample.] 

But  the  court  (Burnside,  president),  being  of  a  different  opinion, 
instructed  the  jury  that  the  executors  of  Francis  Sample  were  en- 
titled to  the  money  in  the  hands  of  the  sheriff,  after  the  payment 
of  the  bank  judgment,  arid  they  found  accordingly 

"  Potter,  for  plaintiff  in  error. — When  assets  come  to  the  hands  of 
an  executor,  he  is  personally  liable  to  a  creditor  or  legatee  of  the 
estate.  In  this  case  the  claim  was  not  made  against  the  estate  of 
David  Sample,  deceased  ;  for  his  whole  real  and  personal  estate,  by 
the  direction  of  his  will,  had  long  before  been  converted  into  money 
by  his  executors,  which  remained  in  their  hands  and  for  which  they 
were  liable,  and  did  charge  themselves  in  the  settlement  of  their 
administration  account. 

By  the  3d  section  of  the  Act  of  21st  March  1772,  Purd.  Dig. 
517,  it  is  provided,  that  when  there  is  a  plea  of  no  assets  by  an 
executor,  certain  proceedings  shall  take  place  by  which  the  amount 
of  the  assets  shall  be  ascertained;  judgment  shall  then  be  entered 
to  remain  as  security  ;  it  is  reasonable  that  this  security  shall  be 
against  the  estate  of  the  executor,  who  gives  no  bail ;  and  particu- 
larly in  this  case,  where  there  was  no  estate  of  the  testator,  which 
could  have  been  secured  by  the  judgment;  here  the  executors  ad- 
mitted, by  their  .settlement  in  1806,  that  the  assets  were  in  their 
hands,  upon  which  our  judgment  was  obtained.  On  this  point  were 
cited  Wilson  v.  Wilson,  3  Binn.  557 ;  Isett  v.  Brenizer,  MS., 
Chambersburg,  October  term  1828. 

A  judgment  generally  against  an  executor  is  personal :  Griffith 
v.  Chew,  8  S.  &  R.  17. 

Fisher  and  Hale,  for  defendants  in  error. — It  would  be  contrary 
to  legal  principles  that  when  an  executor  is  sued  in  his  representa- 
tive capacity,  declared  against  as  such,  and  judgment  on  that  decla- 
ration, that  that  judgment  should  bind  him  personlly.  Executors, 
by  a  proper  proceeding  against  them,  may  be  made  personally  lia- 
ble, but  that  proceeding  has  not  been  pursued  in  this  case  :  Com- 
monwealth v.  Kayrn,  2  S.  &  R.  37 f> ;  Guier  v.  Kelly,  2  Binn.  2!>4; 
Clark  v.  Herring,  5  Id.  33.  In  Wilson  v.  Wilson,  the  declaration 
was  against  the  executor  personally. 

Potter,  in  reply. — A  proceeding  to  prove  a  devastavit  can  only 
be  instituted  bv  a  creditor,  and  not  bv  a  legatee;  but  whv  should 

*  v  m 

either  one  or  the  other  institute  a  proceeding  to  ascertain  that 
which  the  executors  always  admitted  and  put  on  record  by  the  set- 
tlement of  their  accounts  ? 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — Whether  an  action  for  a  legacy  may  not  be  sup- 
ported, under  the  implied  promise  to  pay.  arising  from  the  consider- 


424  SUPREME  COURT 

[McCulloch  v.  Sample.] 

ation  of  assets,  it  is  unnecessary  to  decide.  In  Clark  v.  Herring,  5 
Binn.  33,  it  was  ruled,  "  that  assets  are  a  sufficient  consideration 
for  a  personal  promise  by  one  who  is  executor  to  pay  a  legacy  and 
charge  him  de  bonis  propriis."  And  in  Isett  r.  Brenizer,  it  would 
seem  to  have  been  the  opinion  of  the  court,  that  an  action  may  be 
maintained  against  an  executor  personally  on  a  promise  implied 
from  the  consideration  of  indebtedness.  However  this  may  be,  the 
legatee  may  elect  to  bring  suit  against  him  in  his  representative 
character,  and  this,  it  is  believed,  is  the  usual  form  ;  in  which  case 
the  judgment  is  de  bonis  testatoris  and  not  de  bonis  propriis.  And 
in  this  I  do  not  agree  with  the  reasoning  of  the  chief  justice  in 
Isett  v.  Brenizer.  The  legatees  brought  this  suit  against  Francis 
and  David  Sample,  as  executors  of  David  Sample,  deceased.  The 
cause  was  referred,  and  the  arbitrators  awarded  generally  in  favor 
of  the  plaintiff.  As  there  was  no  declaration  or  statement  filed,  the 
judgment  follows  the  nature  of  the  writ,  and  is  a  judgment  against 
them  in  their  representative,  and  not  in  their  personal,  character. 
The  fi.  fa.  pursues  the  judgment,  and,  in  short,  there  is  nothing  on 
the  record  which  indicates  any  intention  of  considering  the  execu- 
tors personally  liable  for  the  debt.  On  the  contrary,  no  person, 
who  might  search  the  docket  for  encumbrances,  would  for  a  moment 
have  supposed  that  the  judgment  bound  the  individual  property  of 
the  executors.  Wilson  v.  Wilson,  3  Binn.  557,  was  a  suit  for  a  distri- 
butive share,  in  which  the  writ,  and  the  recital  in  the  declaration, 
was  against  the  defendant  as  executor,  but  the  count  was  on  a  pro- 
mise in  his  individual  character.  And  this  constitutes  the  differ- 
ence between  the  cases,  for  it  was  the  count  which  controlled  the 
writ  and  rendered  Wilson  personally  liable  on  the  judgment.-  It 
could  not  have  been  pretended  that  he  would  have  been  personally 
bound,  independently  of  the  declaration,  and  that  by  virtue  of  the 
count,  in  which  he  is  charged  individually.  Had  the  plaintiffs  filed 
a  declaration  or  statement,  with  the  proper  averments,  as  in  Wilson 
v,  Wilson,  there  would  have  been  room  for  the  argument,  that  his 
being  stated  to  be  executor  should  be  rejected  as  surplusage.  As 
the  defendants  were  sued  as  executors,  judgment  recovered  against 
them  as  executors,  and  execution  was  issued  against  them  in  the 
same  capacity,  we  are  of  the  opinion  this  judgment  should  be 
affirmed.  Judgment  affirmed. 

Commented  on  and  dissented  from,  by  Gibson,  C.  J.,  2  P.  &  W.  494. 


June  1830.]  OF  PENNSYLVANIA.  425 


Gro  et  al.  against  Huntingdon  Bank. 

A  creditor  who  has  obtained  judgment  against  the  principal,  against  the 
endorsers,  and  against  the  absolute  bail  of  the  principal,  and  has  issued 
execution  and  levied  upon  the  land  of  the  principal  or  of  the  absolute  bail, 
may,  nevertheless,  have  execution  of  the  chattels  of  the  endorsers.  Nothing 
but  actual  satisfaction  can  prevent  him. 

The  bare  seizing  of  land  in  execution  to  the  value  of  the  debt,  is  not  a 
satisfaction. 

WRIT  of  error  to  the  special  court  of  Common  Pleas  of  Mifflin 
county  (Reed,  president). 

The  Huntingdon  Bank  loaned  $1000  to  Robert  Burns,  for  which 
they  took  his  note  with  Christian  Gro  and  Joseph  Townsend,  en- 
dorsers. To  April  term  1817,  the  bank  obtained  a  judgment 
against  Robert  Burns,  and  also  to  the  same  term  against  Christian 
Gro  and  Joseph  Townsend;  after  judgment  was  obtained  against 
Robert  Burns,  the  principal,  Hugh  Burns,  John  Rothrock  and 
James  Robinson  went  his  absolute  bail  for  the  money,  in  order  to 
obtain  the  stay  of  execution  for  one  year.  After  the  year  had 
expired,  Burns,  Rothrock  and  Robinson  were  sued  on  the  recogni- 
sance by  the  bank,  and  judgment  obtained  against  them,  upon- 
which  a  fi.  fa.  was  issued  and  levied  upon  the  land  of  the  defend- 
ants ;  an  inquisition  was  held  thereon,  and  it  was  extended.  Sub- 
sequently a  fi.  fa.  issued  upon  the  judgment  against  Christian  Gro 
and  Joseph  Townsend,  which  was  levied  upon  the  land  of  Christian 
Gro,  whose  counsel  moved  the  court  to  set  aside  the  execution  on 
the  ground  that  property  of  the  absolute  bail  had  been  levied  to  an 
amount  sufficient  to  pay  the  debt,  interest  and  costs.  But  the  court 
being  of  opinion  that  the  bank  had  a  right  to  proceed  against  both, 
until  it  received  satisfaction,  refused  to  set  aside  the  execution 
against  Christian  Gro,  and  this  writ  of  error  was  sued  out. 

Fisher,  for  the  plaintiff  in  error. — The  bank  had  no  right  to 
issue  a  fi.  fa.  against  Gro,  the  endorser,  until  it  had  exhausted  the 
judgment,  execution  and  levy  of  the  property  of  the  absolute  bail: 
Bank  of  Pennsylvania  v.  Latshaw,  9  S.  &  11.  9;  Hunt  r.  MeClure, 
2  Yeates  387  ;  Clerk  v.  Withers,  2  Ld.  Raym,  1073;  Windham  r. 
Withers,  1  Strange  515 ;  2  Wil.  Bac.  Ab.  717,  tit.  J-lwution  ; 
Lancaster  u.  Fielder,  2  Ld.  Raym.  1451;  Chitty  on  Bills  443  ; 
Ilayt  v.  Hudson,  12  Johns.  11.  207  ;  Barnet  v.  Washebaugh,  1C 
S.  &  R.  410  ;  Commonweath  v.  Lebo,  13  Id.  175 ;  Lawrence  t». 
Pond,  17  Mass.  433 ;  McLelland  v.  Whitney,  15  Id.  137  ;  Ladd  t>. 
Blunt,  4  Id.  403.  Upon  principle  it  would  be  wrong,  to  permit  a 
plaintiff  to  take  out  several  executions,  and  upon  each  to  levy  pro- 
perty enough  to  pay  the  debt,  because  if  the  sheriff"  levies  he  must 
sell ;  he  is  commanded  so  to  do ;  he  has  no  right  to  judge  or  know 
that  two  or  more  executions  are  to  satisfy  the  same  debt. 


426  SUPREME  COURT  [Sunbury 

[Gro  o.  Huntingdon  Bank.] 

Jfale,  for  defendant  in  error,  admitted  that  a  levy  upon  personal 
property  to  an  amount  sufficient  to  pay  the  execution,  was  a  dis- 
charge of  the  debt,  and  that  the  authorities  read  on  the  other  side 
very  fully  established  that  rule  of  law  ;  but  still  contended,  that  the 
idea,  that  a  levy  upon  land  was  a  satisfaction  of  the  debt,  never 
was  printed  in  a  book. 

Fisher,  in  reply,  read,  McCullough  v.  Guetner,  1  Binn.  214 ; 
Morris  v.  Griffith,  1  Yeates  189. 

PER  CURIAM. — Levying  the  lands  of  bail,  is  not  distinguishable 
from  levying  the  lands  of  the  principal ;  so  that  the  question  is 
whether  a  creditor  who  has  levied  the  land  of  the  drawer  of  a  note, 
may  nevertheless  have  execution  of  the  chattels  of  the  endorsers. 
Nothing  but  actual  satisfaction  can  prevent  him,  and  accordingly 
the  argument  is  that  a  levy  is  satisfaction.  It  is  clear,  however, 
that  the  bare  seizing  of  land  in  execution  to  the  value  of  the  debt, 
is  not  so.  A  condemnation  of  the  land  might  have  given  color  to  the 
argument ;  but  the  rents  and  profits  having  been  found  sufficient  to 
produce  satisfaction  in  seven  years,  the  creditor  was  at  liberty  to 
proceed  to  an  extent  or  not,  at  his  election,  and  having  declined 
to  take  satisfaction  out  of  the  profits,  it  is  clear  the  debt  remains. 
Whether,  however,  a  mere  refusal  to  stay  proceedings  be  properly 
the  subject  of  a  writ  of  error,  is  a  point  which  has  not  been  made, 
and  on  which  we  forbear  to  intimate  an  opinion. 


McConahy  against  Centre  and  Kishaeoquillas  Turn- 
pike Road  Co. 

Satisfactory  proof  of  the  loss  of  a  written  advertisement  must  be  given  to 
lay  a  ground  for  the  admission  of  the  advertisement  copied  into  the  news- 
paper. 

A  charter  of  incorporation  cannot  be  declared  void  in  a  collateral  suit,  it 
can  only  be  vacated  by  a  scire  facias  to  repeal  it ;  or  on  a  writ  of  quo  warranto 
at  the  suit  of  the  Commonwealth. 

An  agreement  between  commissioners  authorized  to  take  subscriptions  of 
stock,  that  a  certain  number  of  shares  of  fictitious  stock  shall  be  subscribed, 
in  order  to  enable  them  to  obtain  a  charter,  is  a  fraud  upon  the  bona  fide 
subscribers,  which  will  relieve  thorn  from  any  obligation  to  pay. 

A  declaration  made  by  a  third  person,  in  the  presence  of  the  commissioner 
to  one  about  to  subscribe  for  stock,  that  he  can  pay  his  subscription  in  work, 
and  this  not  objected  to  at  the  time  by  the  commissioners,  must  be  taken  as 
his  delaration  ;  and  there  is  no  distintinction  between  the  commissioner  and 
the  corporation,  in  regard  to  this  promise. 

WRIT  of  error  to  the  special  court  of  Common  Pleas  of  Mifflin 
county. 

This  suit  was  brought  by  the  President,  Managers  and  Company 
of  the  centre  and  Kishacoquillas  Turnpike  Road  Company  v.  Jarnea 


June  1830.]  OF  PENNSYLVANIA.  42T 

[McConuchy  c.  C.  &  K.  Turnpike  Co.] 

McConahy,  to  recover  the  amount  of  stock  in  said  company  sub- 
scribed by  him,  arid  which  had  been  called  in  by  resolutions  of  the 
said  company. 

The  whole  case  appears  so  fully  in  the  opinion  of  the  court  that 
any  other  statement  is  unnecessary. 

Fisher  and  Blanc-hard,  for  plaintiff  in  error. 
Wilson  and  Potter,  for  defendants  in  error. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — This  case  again  comes  before  this  court  for  decision, 
and  I  regret  that  we  are  a  second  time  under  the  necessity  of  re- 
versing the  judgment  of  the  Court  of  Common  Pleas.  It  was  an 
action  of  assurnpsit,  brought  by  the  defendants  in  error,  against  the 
plaintiff  in  error,  the  defendant  below,  for  the  amount  of  his  sub- 
scription of  five  shares  of  $50  each,  to  the  stock  of  the  Centre  and 
Kishacofjuillas  Turnpike  Road  Company.  On  the  trial  of  the  cause, 
after  the  plaintiffs  below  had  given  some  evidence  in  support  of 
their  action,  they  offered  in  evidence  a  newspaper,  called  the  '"  Ju- 
niata  Gazette,"  of  the  20th  of  November  1821,  in  which  there  was 
an  advertisement,  purporting  to  have  been  signed  by  the  defendant, 
with  six  others,  calling  a  meeting  of  the  stockholders,  to  hold  an 
election  for  officers  to  organize  the  company,  for  the  purpose  of 
showing  that  James  McConahy  had  accepted  the  charter,  and  had 
acted  under  it.  To  the  reading  of  this  paper  the  defendant  objected; 
the  plaintiffs  then  called  William  Mitchell,  who  proved  that  he  had 
printed  the  paper  and  had  regularly  issued  it ;  that  it  was  not  his 
custom  to  preserve  original  advertisements,  and  that  he  never  did 
preserve  them  ;  that  he  had  told  the  defendant  he  had  not  the 
original,  nor  any  papers  among  which  he  could  look  with  any  hope 
of  finding  it ;  that  he  thought  the  old  papers  of  the  office  were  de- 
stroyed among  waste  paper,  shortly  after  the  publication ;  and  that 
some  of  the  advertisements  he  had  taken  from  the  Bellefonte  paper ; 
but  could  not  say  as  to  this,  nor  that  it  was,  or  was  not,  copied  from 
the  last  mentioned  paper ;  that  if  he  copied  it  from  a  written  paper 
it  was  either  destroyed  or  lost,  but  that  he  had  not  hunted  for  it,  as 
he  had  no  place  he  could  look  with  any  prospect  of  finding  it.  He 
also  proved  that  the  defendant  was  one  of  his  subscribers,  and  took 
his  paper  at  the  time.  The  defendant,  however,  still  objected  to 
the  reading  of  the  paper,  alleging  there  was  no  proof  that  the  de- 
fendant had  signed  it  or  authorized  it  to  be  printed,  or  knew  any- 
thing of  the  transaction ;  that  the  original  should  have  been 
produced,  or  its  loss  proved  ;  and  that  the  first  seven  commissioners 
should  have  given  the  notice,  not  the  first  seven  subscribers.  The 
court  overruled  the  objections  and  admitted  the  newspaper  in  evi- 
dence. An  exception  was  taken  to  this  opinion  of  the  court,  which 
forms  the  first  error  complained  of. 


428  SUPREME  COURT  [Sunbury 

[McConachy  r.  C.  &  K.  Turnpike  Co.] 

The  question  was,  whether  James  McConahy  had  signed  the  ad- 
vertisement or  authorized  its  publication.  If  it  had  merely  been 
whether  he  had  notice  of  a  fact  published  in  the  newspaper,  the 
fact  of  his  taking  the  paper  in  which  it  was  published  might  have 
been  submitted  to  the  jury  ;  but  I  take  it  that  in  this  case  the 
original  paper,  signed  by  the  person,  ought  to  have  been  produced, 
or  its  loss  proved,  and  if  its  loss  had  been  legally  proved,  then  proof 
that  the  defendant  had  signed  it,  or  proof  that  he  knew  of  it,  and 
had  agreed  that  some  other  person  should  write  the  advertisement 
and  put  his  name  to  it,  would  have  been  sufficient.  But  the  evi- 
dence did  not  prove  the  fact  that  the  defendant  had  advertised,  or 
sanctioned  the  advertisement ;  indeed,  there  was  no  legal  evidence 
to  show  that  due  diligence  had  been  used  to  procure  the  original,  or 
to  account  satisfactorily  for  the  want  of  it,  in  truth,  the  witness 
said  he  had  not  looked  for  it,  as  he  had  no  prospect  of  finding  it. 
This  was  not  a  sufficient  reason  to  supersede  the  necessity  of  a 
search,  and  a  diligent  search  might  have  been  successful.  The 
defendant  moreover  was  not  one  of  the  commissioners,  he  was  only 
a  subscriber,  and  as  such  was  not  entitled  to  advertise ;  the  com- 
missioners alone  were  directed  to  perform  this  duty.  See  Pamph. 
L.  of  1821,  p.  75,  and  Pamph.  L.  of  1826,  p.  349.  We  therefore 
think  that  the  admission  of  the  newspaper  was  wrong.  The  decis- 
ion in  the  case  of  Sweigart  v.  Lowmarter,  14  S.  &  R.  203,  on  a 
similar  point,  goes  far  to  determine  this  part  of  the  case. 

After  the  plaintiffs  had  read  the  advertisement  to  the  jury,  they 
gave  further  evidence  to  prove  that  the  defendant  had  constituted  a 
proxy  to  vote  at  the  first  election  of  the  company  for  officers ;  they 
also  proved  the  amount  of  the  cost  of  the  road  and  its  annual  toll, 
and  then  rested  their  cause. 

The  court  permitted  the  plaintiffs  to  prove  by  one  of  the  commis- 
sioners that  he  saw  the  defendant  sign  for  his  five  shares  at  Mr.  Rey- 
nolds' tavern  ;  that  the  commissioners  had  obtained  all  the  stock  they 
could  after  the  Act  of  1821,  called  the  General  Appropriation  Act,  had 
passed,  giving  this  road  $20,000.  This  witness  also  proved  that  he 
had  calculated  the  probable  expense  of  the  road,  and  was  satisfied  that 
they  had  a  sufficient  sum  subscribed,  taking  in  the  $20,000  from  the 
state,  or  perhaps  more ;  that  thereupon  the  commissioners  met  at 
Kerr's,  at  which  meeting  all  or  nearly  all  were  present,  and  the  calcu- 
lation laid  before  the  commissioners,  and  they  were  all  of  opinion  that 
no  more  stock  could  be  obtained,  but  that  with  the  state  stock  they 
would  have  enough ;  that  it  was  debated  whether  they  should  get 
the  amount  of  individual  stock  reduced  or  get  the  amount  required 
by  the  act  by  adding  fictitious  stock,  so  as  to  obtain  the  charter, 
and  enable  the  company  to  go  on.  The  commissioner  then  filled  up 
the  certificate,  or  in  part  signed  it  in  blank,  when  the  other  commis- 
sioners took  it,  and  were  to  get  it  completed,  and  this  was  the  last 
act  the  witness  did,  in  relation  to  the  company,  except  paying 


June  1830.]  OF  PENNSYLVANIA.  429 

[McConahy  v.  C.  &  K.  Turnpike  Co.] 

stock.  The  witness  also  proved,  that  he  saw  a  subscription  of  the 
board  in  a  book  of  fictitious  stock,  and  that  the  first  suggestion  of 
taking  fictitious  stock  was  in  Lewistown.  There  were  from  two 
hundred  and  ninety  to  three  hundred  shares  of  good  stock,  about 
half  the  amount  required.  The  Act  of  Assembly  required  six  hun- 
dred shares  before  a  charter  could  be -obtained.  The  witness  de- 
clared they  were  right  in  their  estimate  ;  for  the  good  shares  were 
amply  sufficient,  with  the  $20,000  to  make  the  road.  He  could 
not  say  that  he  ever  told  the  defendant  that  three  hundred  shares 
would  be  enough,  but  he  often  had  repeated  the  declaration.  On 
his  cross-examination,  the  witness  said,  "  there  was  no  other  com- 
missioner but  myself  present"  (when  Mr.  Reynolds  took  pains  with 
Mr.  McConahy  to  induce  him  to  subscribe),  "  he  took  more  pains 
with  him  than  I  did  ;  I  put  him  more  particularly  under  his  care." 

The  defendant  also  proved,  by  another  witness,  that  while  he 
was  taking  stock  in  1821,  with  the  commissioner,  he  was  anxious 
to  have  stock  taken,  and  that  he  was  requested  to  speak  to  the 
defendant  for  this  purpose ;  that  he  did  so,  and  took  him  into  the 
room  in  which  the  commissioner  was ;  that  the  defendant  refused 
to  subscribe,  and  that  then  the  witness  urged  as  a  means  to  induce 
the  defendant  to  subscribe,  that  he  could  pay  it  in  blacksmith 
work,  that  the  defendant  had  before  refused,  alleging  he  was  not 
able  ;  that  he  prevailed  on  him  to  subscribe  he  believed  by  holding 
out  the  inducement  of  paying  in  work  ;  the  treaty  with  the  defend- 
ant was  in  the  presence  of  the  commissioner,  who,  however,  did 
not  say  anything,  and  was  not  appealed  to.  Being  cross-examined 
the  witness  could  not  remember  the  manner  he  had  pointed  out, 
of  the  defendant's  getting  the  work,  but  that  he  had  referred  to 
his  labor  as  a  means  of  getting  money  to  pay,  and  said  it  would  be 
to  their  interest  to  collect  in  work,  that  there  was  no  stipulation  by 
the  commissioner  that  the  company  would  take  work  ;  the  matter 
was  principally  left  to  the  witness. 

This  closed  the  testimony  on  both  sides,  when  the  following 
points  were  submitted  to  the  court  by  the  parties,  to  wit :  the  plain- 
tiffs requested  the  court  to  instruct  to  jury  : 

"  1st.  If  the  jury  believe  that  the  defendant  advertised,  as  one 
of  the  first  seven  stockholders  named  in  the  charter,  for  an  election, 
signed  a  proxy  and  voted  at  the  election  by  proxy,  on  the  ''Id  of 
December  1821,  it  would  be  conclusive  evidence,  in  point  of  law, 
of  his  acceptance  of  the  charter,  and  the  plaintiffs  would  be  enti- 
tled to  recover. 

"  2d.  That  the  Act  of  the  10th  of  April  1826,  and  of  the  1st  of 
April  1823,  validates  the  subscription  of  the  defendant,  and  places 
him  in  the  same  situation  as  if  no  fictitious  stock  had  been  ob- 
tained. 

"  3d.   That  even  if  the  stockholders  would  take  advantage  of  the 


430  SUPREME  COURT  [Sunbury 

[McConahy  r.  C.  &  K.  Turnpike  Co.] 

fictitious  stock,  yet  the  defendant  by  his  acts  of  voting  by  proxy, 
advertising,  &c.,  cannot  now  set  it  up  as  a  defence  in  this  suit.  ' 

The  defendant  requested  the  court  to  instruct  the  jury  : 

"  1st.  That  if  they  believe  McConahy,  the  defendant,  did  not 
know  that  fictitious  stock  had  been  certified  to  the  governor,  when 
he  gave  his  proxy  to  James  Milliken,  then  that  proxy  cannot  affect 
the  defendant. 

;'  2d.  If  the  jury  believe  that  the  advertisement  for  the  election 
for  managers,  of  the  first  seven  subscribers,  was  done  without  the 
agency  of  James  McConahy,  the  defendant,  but  by  other  persons 
using  his  name,  then  this  advertisement  cannot  in  any  way  affect 
him. 

"  3d.  If  James  McConahy  was  induced  to  subscribe  five  shares  of 
stock,  for  which  this  suit  was  brought,  under  the  promise  of  paying 
in  blacksmith  work  and  other  work,  the  plaintiffs  should  have 
made  a  demand  of  this  work  before  they  could  sustain  this  suit. 

"4th.  That  if  the  jury  believe  at  the  time  McConahy  subscribed 
his  five  shares,  and  at  the  time  the  advertisement  for  the  election, 
and  at  the  time  he  gave  his  proxy  to  Milliken,  he  was  ignorant  that 
fictitious  stock  was  certified  to  the  governor,  the  plaintiffs  are  not 
entitled  to  recover." 

These  points  were  generally  answered  by  the  court  in  their  charge 
to  the  jury,  which  was  as  follows,  to  wit : 

"  It  appears  to  me  that  the  three  following  questions  are  pre- 
sented in  the  investigation  of  this  cause : 

"  1.  Was  the  charter  accepted  and  confirmed  by  defendant;  if 
80,  he  cannot  now  gainsay  it. 

"  2.  If  not  accepted  or  confirmed  by  defendant,  was  the  admis- 
sion of  the  fictitious  signers  of  stock,  by  the  commissioners,  a  fraud 
upon  the  defendant. 

"•  3.  Was  the  subscription  of  McConahy  obtained  through  fraudu- 
lent representations,  sanctioned  by  the  agent  of  the  company  ? 

"  By  the  Act  of  1821,  for  the  erection  of  this  company,  Mr. 
Burnside  and  others  were  appointed  commissioners  to  receive  sub- 
scriptions, so  as  to  enable  the  subscribers  for  stock  to  obtain  a 
charter  of  incorporation.  The  leading  public  object  was  to  have  a 
turnpike-road  made  from  Brown's  mills  to  Bellefonte.  It  may  have 
been  a  private  object  with  the  subscribers  to  vest  their  money  in  a 
fund  that,  besides  contributing  to  the  completion  of  the  road,  might 
furnish  them  an  annual  interest.  The  commissioners  were  as  well 
agents  for  the  public  as  for  the  subscribers.  It  was,  therefore,  a 
duty  imposed  by  interest  on  the  subscribers  to  attend  to  the  trans- 
actions of  the  commissioners.  The  Act  of  Assembly  was  directory 
upon  the  commissioners,  and  they  had  no  legal  ability  to  do  any 
thing  contrary  to  the  provisions  of  the  act.  No  charter  could  have 
been  demanded  until  all  the  provisions  of  the  act  were  complied 
with  ;  and  the  subscribers  could  not  be  prejudiced  by  any  act  of 


June  1830.]  OF  PENNSYLVANIA.  431 

[McConachy  ».  C.  &  K.  Turnpike  Co.] 

the  commissioners  contrary  to  law.  The  charter  was  to  be  procured 
from  the  government  for  the  benefit  of  the  subscribers,  not  for  the 
benefit  of  the  commissioners.  If  the  subscribers  procured  their 
charter  without  an  exact  compliance  with  the  provisions  of  the  law, 
it  was  not  for  those  who  procured  it  to  complain.  The  government 
from  whom  it  was  obtained  might  or  might  not  repeal  it  at  their 
pleasure.  So  long  as  the  charter  exists  unrepealed,  and  more  par- 
ticularly since  the  original  defects  have  been  expressly  waived  by 
the  government  by  a  positive  Act  of  Assembly,  it  exists  Iffjully, 
and  is  of  full  force  and  effect  according  to  its  import.  The  com- 
pany has  a  legal  right  to  sustain  a  suit  in  their  corporate  name,  and 
upon  the  trial  now  in  progress  on  the  pleas  and  issues  upon  the 
record,  the  validity  of  the  charter  cannot  be  inquired  into.  The 
court  and  jury  are  bound  to  give  effect  to  the  contracts  of  the  cor- 
poration and  to  the  contracts  in  subscribing  for  stock,  made  before 
the  date  of  the  charter,  so  far  as  such  contracts  were  fair  and 
honest,  and  did  not  fraudulently  affect  the  interest  of  such  sub- 
scribers. If  the  commissioners  did  any  act  contrary  to  their  legal 
duty  after  James  McConahy  subscribed  for  five  shares  of  stock, 
without  his  knowledge  or  assent,  to  his  prejudice,  it  would  avoid  the 
obligation  of  his  engagement  to  pay.  Two  acts  are  complained  of 
by  the  defendant  as  having  this  effect.  First,  It  is  complained  that 
instead  of  obtaining  the  subscription  of  six  hundred  shares,  before 
a  charter  was  obtained,  only  three  hundred  good  shares  were  ob- 
tained;  and  in  this  way  it  said  the  defendant  was  prejudiced.  If 
McConahy  had  no  knowledge  of  such  fact,  and  he  never  assented 
to  it  directly  or  indirectly,  and  it  was  in  prejudice  of  his  rights,  his 
subscription  was  not  binding  upon  him.  But  supposing  him  to  be 
wholly  ignorant  of  the  facts  in  relation  to  the  fictitious  stock,  and 
the  fact  of  the  charter  being  obtained  upon  it,  was  he  prejudiced  by 
it  ?  It  is  as  well  a  presumption  of  the  law  as  the  testimony  in  the 
case,  that  it  was  supposed  that  the  full  amount  of  the  bona  fide 
subscriptions,  together  with  the  state  money,  would  be  required  to 
complete  the  road.  And  from  the  terms  of  the  subscription  it  was 
indicated  that  the  subscribers  were  bound  to  pay  350  on  each  share 
by  them  respectively  subscribed.  There  were  two  objects  the  sub- 
scribers probably  had  in  view,  one  the  completion  of  the  turnpike 
road,  the  other  the  vesting  of  their  money  in  a  productive  fund. 
From  the  testimony  it  appears  that  the  first  object  has  been  fully 
effected,  for  the  road  has  been  long  since  made,  and  the  company 
been  in  the  receipt  of  tolls  for  the  whole  distance.  The  second 
object  may  have  been  advanced  rather  than  ////?/ >V(f  by  the  contri 
vance  of  certifying  the  fictitious  subscriptions.  Because  if  six 
hundred  shares  had  been  subscribed  at  $-30  a  share  added  to  the 
state  stock  of  $20,000,  it  would  have  amounted  to  $50.000,  while 
three  hundred  shares  at  $50,  with  the  state  stock,  amounted  to 
$35,000 ;  if  the  whole  money  had  been  received  and  expended  as 


432  SUPREME  COURT  [Sunbury 

[McConachy  r.  C.  A  K.  Turnpike  Co.] 

is  generally  the  case,  in  the  one  event,  the  defendant  would  have 
drawn  his  dividend  in  the  proportion  his  stock  bore  to  $50,000 ;  in 
the  other,  in  the  proportion  it  bore  to  $35,000.  It  is  left  to  the  jury 
to  say  whether,  under  all  the  evidence,  the  facts  in  relation  to  the 
fictitious  stock  injuriously  affected  the  engagement  of  the  defendant 
under  his  subscription,  without  his  knowledge  or  assent,  directly  or 
indirectly ;  if  so,  it  would  absolve  him  from  his  engagement. 
Where  companies  have  plenty  of  money  they  generally  spend  it 
liberally ;  where  they  have  little,  it  often  induces  economy.  It  can 
hardly  be  doubted  that  the  principal  and  leading  object  of  the  sub- 
scribers was  to  effect  the  completion  of  the  turnpike  road  contem- 
plated. We  have  it  in  proof  that  after  earnest  attention  to  the 
business,  and  every  diligence  used,  the  commissioners  could  only 
obtain  about  three  hundred  shares  of  stock  to  be  subscribed,  and 
the  Act  of  Assembly  requiring  six  hundred  before  a  charter  could 
be  had,  they  were  at  a  stand,  they  could  not  move  a  step  further. 
The  great  object  of  the  subscribers  was  likely  to  be  defeated,  and 
it  was  only  by  the  expedient  resorted  to  of  filling  up  the  list  with 
the  names  of  persons  unable  to  pay  that  the  charter  could  be  had, 
or  the  great  work  effected.  Although  as  between  the  government 
and  the  subscribers,  the  expedient  resorted  to  may  have  been  excep- 
tionable, it  appears  to  me  it  was  manifestly  for  the  advantage  of  the 
subscribers ;  indeed  it  was  the  only  way  the  commissioners  could 
devise  to  effect  the  object  at  all.  The  subscribers  accepted  the 
charter  so  obtained,  the  company  was  organized,  money  collected, 
the  road  made,  toll-gates  erected,  and  the  company  now  in  the 
receipt  of  tolls ;  and  the  government  confirmed  the  charter,  on 
their  part  waiving  all  objections  on  account  of  the  irregularities 
alluded  to.  IIow,  then,  was  the  defendant  injured  in  the  affair? 
He  subscribed  for  five  shares.  His  subscription  imports  an  uncon- 
ditional obligation  to  pay  the  whole  if  required.  There  is  no  con- 
dition precedent  expressed  in  it,  and  the  idea  was  not  held  out  by 
the  commissioner,  as  he  stated  in  evidence  that  less  than  the  whole 
would  be  required.  The  road  was  sooner  made,  and  it  is  said  to  be 
well  made,  and  very  probably  made  for  less  money  by  the  expedient 
resorted  to,  than  if  the  whole  six  hundred  shares  had  been  sub- 
scribed by  solvent  stockholders.  I  do  not,  therefore,  see  so  plainly 
how  the  defendant  ivas  injured  or  exposed  to  injury  in  this  trans- 
action, and  if  he  was  not,  I  see  no  reason  he  has  to  complain. 

"  But  it  is  said  he  accepted  the  charter,  advertised  for  the  elec- 
tion of  officers  under  the  charter,  and  voted  at  the  election  by 
proxy.  If  he  did  accept  the  charter,  knowing  the  facts  alluded  to, 
his  mouth  would  be  closed,  and  no  objection  on  that  account  could 
now  avail  him.  See  first  point  on  part  of  the  plaintiffs,  and  first 
point  on  part  of  the  defendant.  The  advertisement  and  proxy  are 
evidence  to  show  his  acceptance  of  the  charter.  But  if,  in  truth, 
he  did  not  know  that  fictitious  stock  had  been  certified  to  the  gov- 


June  1830.]  OF  PENNSYLVANIA.  433 

[McConachy  v.  C.  &  K.  Turnpike  Co.] 

crnor,  when  he  gave  his  proxy  to  James  Milliken,  such  proxy 
would  not  affect  him.  There  is  no  legal  magic  in  the  proxy  ;  it  is 
only  as  evidence  of  the  fact  of  acceptance  of  the  charter.  If  he  did 
so,  knowing  the  facts,  he  is  barred  in  his  defence.  If  he  did  not 
know  the  facts,  the  proxy  would  have  no  effect.  See  second  point 
of  defendant.  The  same  remarks  apply  to  the  advertisement.  If 
it  was  done  without  the  agency  of  defendant,  by  other  persons  using 
his  name,  it  would  not  affect  him.  It  seems  it  was  riot  his  duty  to 
advertise ;  he  was  not,  therefore,  bound  to  know  the  facts  in  rela- 
tion to  it ;  anything  thus  done  in  ignorance  of  a  man's  rights,  or 
of  the  facts  do  not  affect  him. 

"  Fourth  point  of  defendant.  Such  ignorance  as  is  set  out  in 
this  point  may  not  be  a  bar  to  plaintiff's  recovering,  if  the  charter 
was  obtained,  the  company  organized,  the  work  done  as  intended, 
and  the  state  has  confirmed  the  charter,  waiving  all  exceptions  to 
these  irregularities.  If  defendant  was  not  injured  or  defrauded, 
he  would  have  no  right  to  resist  the  payment  on  that  ground. 
See  second  point  on  part  of  the  plaintiff.  The  two  acts  referred 
to  do  validate  the  charter  and  the  subscriptions,  if  bona  fide  made. 
But  if  fraudulently  obtained  on  part  of  the  commissioner,  this 
act  would  not,  and  could  not,  confirm  them.  If  fraudulent  in  the 
beginning,  no  subsequent  acquiescence  of  the  defendant  would 
make  them  good.  It  would  require  a  new  engagement,  or  some- 
thing equivalent.  The  legislature  never  intended  to  give  effect  to 
a  contract  improperly  obtained,  contrary  to  the  consent  of  the 
injured  party.  The  terms  of  the  act  only  apply  to  subscriptions 
obtained  bona  fide  in  one  act,  and  in  good  faith  iu  the  other,  which 
is  the  same  thing. 

"  Third  point  of  plaintiff.  If  the  giving  the  proxy,  voting,  ad- 
vertisement, &c.,  satisfy  the  jury  that  the  defendant  knowingly 
accepted  the  charter,  we  before  said,  and  now  repeat,  that  his  mouth 
would  be  closed ;  but  if  done  without  a  knowledge  of  the  facts  he 
now  complains  of,  or  by  others,  without  his  knowledge,  defendant 
would  not  be  affected  by  it. 

"  Third  point  on  part  of  defendant.  The  commissioner  taking 
the  stock  was  the  agent  appointed  by  law  for  that  purpose.  If  the 
defendant  was  induced  to  subscribe  under  a  promise  or  engagement 
from  him  that  it  should  be  paid  in  blacksmith  work,  the  plaintiffs 
should  have  made  a  demand  of  such  work  before  they  could  sustain 
this  suit.  It  was  the  duty  of  the  commissioner  to  take  subscrip- 
tions on  the  terms  prescribed  by  law.  Those  terms  are  set  out  in 
the  writing  in  the  book  over  the  subscriptions  ;  it  calls  for  money, 
not  for  work,  and  the  commissioner  had  no  power  or  authority  to 
promise  or  engage  to  take  payment  in  work.  lie  might  use  fair 
reasoning  and  argument  to  induce  such  subscriptions,  but  could  not 
use  false  inducements;  but  was  only  responsible  for  his  own  con- 
duct in  this  particular.  If  others  falsely  induced  defendant  to  sub- 

1  p.  &  W.— 28 


434  SUPREME  COURT 

[McConachy  v.  C.  &  K.  Turnpike  Co.] 

scribe,  if  the  commissioner  had  no  hand  in  it,  and  did  not  assent  to 
it,  it  was  the  defendant's  folly,  and  ought  not  to  avail  him.  / 
would  apprehend  from  the  evidence  that  no  such  fraud  was  prac- 
tised on  the  defendant  by  the  commissioner.  But  it  is  a  fact  to  be 
determined  by  the  jury.  Indeed  the  whole  cause  depends  mainly 
on  the  evidence :  was  the  defendant  imposed  upon,  was  the  terms 
of  the  agreement  altered  to  his  prejudice,  was  he  circumvented  by 
the  agent,  was  any  fraud  practised  upon  him  ?  If  so,  he  stands 
discharged  from  the  obligation  of  his  engagement.  If  he  knew  how 
the  charter  was  obtained,  and  assented  to  it,  and  voted  by  proxy 
for  officers  under  it,  or  if  the  fictitious  stock  was  added  and  certified 
even  without  his  consent;  if  it  did  not  defraud  or  injure  his  rights, 
and  if  he  subscribed  voluntarily -the  written  engagement  over  his 
name,  he  is  bound  to  pay.  Plaintiffs  only  claim  thirty  dollars  a 
share,  with  common  interest/" 

To  this  charge  the  defendant  excepted,  and  has  here  assigned 
nine  errors ;  some  of  which  have  not,  however,  been  insisted  on  in 
the  argument.  The  errors  are : 

1.  The  court  erred  in  receiving  in  evidence  the  newspaper  con- 
taining the  printed  advertisement,  as  set  forth  in  the  first  bill  of 
exceptions  of  defendant  below. 

2.  The  court  said,  "  was  the  charter  accepted  and  confirmed  by 
the  defendant?     If  so,  he  cannot  now  gainsay  it." 

3.  The  court  said,  "  upon  the  trial  now  in  progress,  and  the  pleas 
and  issues  upon  the  record,  the  validity  of  the  charter  cannot  be 
inquired  into." 

4.  '*  There  were  two  objects  that  the  subscribers  probably  had  in 
view ;  one,   the  completion  of  the  turnpike  road ;  the  other,  the 
vesting  of  their  money  in  a  productive  fund  ;  the  second  object  may 
have1  been  advanced  rather  than  injured  by  the  contrivance  of  cer- 
tifying the  fictitious  stock." 

5.  In  saying,  "  I  do  not  therefore  see  so  plainly  how  the  defend- 
ant was  injured  or  exposed  to  injury  in  this  transaction  ;  and  if  he 
was  not,  I  see  no  reason  he  has  to  complain." 

G.  "  That  if  the  defendant  did  accept  the  charter,  knowing  the 
facts  alluded  to,  his  mouth  would  be  closed,  and  no  objection  on 
that  account  would  now  avail  him." 

7.  "  That  the  advertisement  and  proxy  are  evidence  to  show  his 
acceptance  of  the  charter.     If  he  did  so,  knowing  the  facts,  he  is 
barred  in  his  defence." 

8.  Court  erred  in  charging  on  defendant's  fourth  point,  in  say- 
ing, "such  ignorance  as  is  set  out  in  this  point  may  not  be  a  bar  to 
plaintiff's  recovering,  if  the  charter   was   obtained,   the  company 
organized,  the  work  done  as  intended,  and  the  state  has  confirmed 
the  charter,  waiving  all  exceptions  to  these  irregularities." 

9.  The  court  erred  in  charging  on  the  third  point  of  defendant, 


Jane  1830.]  OF  PENNSYLVANIA.  435 

[McConachy  v.  C.  A  K.  Turnpike  Co. 

in  saying  "the  commissioner  had  no  power  or  authority  to  promise 
or  engage  to  take  payment  in  work." 

The  first  error  assigned,  having  already  been  considered,  any 
further  remarks  in  relation  to  it,  are  deemed  unnecessary.  In 
delivering  the  opinion  of  the  court  on  the  remaining  errors,  I  pro- 
pose to  confine  myself  to  such  general  remarks  as  may  on  this 
occasion  suffice.  The  defendant  complains,  that  the  court  erred, 
when  they  told  the  jury  that  the  validity  of  the  charter  could  not 
be  inquired  into  in  this  action.  This  point  came  before  us,  and  has 
already  been  decided  in  the  case  reported  in  16  S.  &  II.  140.  where  it 
was  expressly  declared,  that  if  the  charter  had  been  even  fraudulently 
obtained,  it  could  not  be  declared  void,  collaterally,  in  a  suit  like 
the  present ;  it  could  only  be  vacated  by  this  court,  either  by  scire 
facias  to  repeal  it  or  to  declare  it  forfeited,  or  on  a  writ  of  quo  war- 
ranto,  at  the  suit  of  the  Commonwealth,  and  so  the  court  below 
declared  the  law ;  there  was  then  no  error  in  this  part  of  the  charge. 
But  if,  in  obtaining  the  charter,  a  fraud  has  been  committed  on  the 
defendant  in  this  action,  by  which  he  has  sustained  or  might  sustain 
an  injury,  it  is  an  entirely  different  question,  whether  the  corpora- 
tion can  sustain  this  suit.  The  evidence  is  positive,  full,  complete 
and  uncontradicted,  that  the  charter  was  obtained  by  means  of  the 
subscription  of  three  hundred  shares  of  fictitious  stock,  in  order  to 
make  up  the  six  hundred  shares,  required  by  law  before  a-  charter 
could  be  granted,  and  that  a  deliberate  plan  was  adopted  and  pur- 
sued to  obtain  the  fictitious  stock,  and  thereby  obtain  a  charter  and 
the  §20,000  subscribed  by  the  state.  But  there  is  no  proof,  nor 
color  of  proof,  that  the  defendant  knew  of  the  plan  or  scheme  to 
put  down  fictitious  names  for  three  hundred  shares,  or  ever  knew 
anything  of  the  execution  of  the  plan,  or  that  it  had  been  carried 
into  effect.  It  appears  that  it  was  suggested  and  adopted  at  a 
meeting  of  the  commissioners,  at  which  it  is  not  pretended,  any 
stockholder,  who  was  not  a  commissioner,  was  present.  The  defend- 
ant was  not  a  commissioner.  There  is  no  proof  that  the  sub- 
scribers to  this  stock  were  informed  that  three  hundred  shares, 
together  with  the  Commonwealth's  subscription  of  £:20.0<)0  would 
be  sufficient  to  make  the  road ;  the  commissioners,  to  be  sure,  were 
so  told,  but  not  the  stockholders.  Can  it  then  be  supposed,  that  if 
the  stockholders  had  been  informed  of  the  scheme,  they  would  ever 
have  agreed  to  it?  Or  have  we  a  right  to  say,  they  would  have 
assented?  For  my  own  part,  I  cannot  think  they  would.  It  was 
a  direct  injury  to  every  stockholder  who  had  subscribed,  for  if  six 
hundred  shares  had  been  taken,  as  the  law  provided,  it  is  evident, 
that  no  more  than  $lo  would  have  been  required  on  each  share, 
whereas  by  the  plan  adopted  in  taking  three  hundred  shares  from 
fictitious  subscribers,  every  real  stockholder  is  called  upon  to  pay 
$30  on  each  share.  I  would  ask,  was  it  just,  was  it  fair  to  deal 
thus  with  the  stockholders.  The  proof  in  this  cause,  1  observe, 


436  SUPREME  COURT  [ 

[McConachy  v.  C.  &  K.  Turnpike  Co.] 

•was  by  one  of  the  commissioners,  and  he  does  not  state  that  the 
commissioners  ever  divulged  their  plan  of  taking  fictitious  stock,  to 
the  real  subscribers,  or  that  any  of  them  knew  of  it,  until  after  the 
company  was  in  operation.  This,  in  my  opinion,  was  a  fraud  on 
every  subscriber,  and  would  excuse  him  from  the  payment  of  his 
subscription.  Let  me  not  be  understood,  as  imputing  to  the  com- 
missioners an  intentional  fraud,  such  is  not  my  meaning,  I  have 
the  pleasure  of  knowing  some  of  them,  and  I  know,  that  they  are 
incapable  of  any  such  intention.  The  facts  are,  however,  distinctly 
proved,  and  nothing  is  left  to  inference ;  it  was  therefore  wrong  to 
refer  it  to  the  jury  to  decide,  whether  the  defendant  knew  of  what 
was  proved  to  have  been  done  in  his  absence,  and  never  communi- 
cated to  him  ;  it  was  essential  for  the  plaintiffs  to  establish  by 
evidence  the  fact  of  notice,  nor  could  the  defendant  be  called  upon 
in  the  first  instance  to  show  that  there  was  no  notice. 

It  is  contended,  that  the  defendant  accepted  the  charter,  and 
thereby  waiving  all  objections,  must  pay  his  subscription  money. 
It  is  true,  a  charter  was  obtained,  but  the  subscribers  did  not  know 
when  or  how  it  was  obtained,  of  the  imposition  on  the  government, 
they  knew  nothing.  They  had  no  direct  agency  in  obtaining  it,  in 
fact,  the  subscribers  could  not  have  obtained  it,  for  the  commis- 
sioners were  the  persons  to  certify  the  necessary  facts  to  the 
governor,  and  when  this  was  done,  the  charter  was  thereupon 
granted.  I  am  satisfied,  that  if  a  proper  application  had  been 
made,  and  the  proper  mode  pursued  to  repeal  this  charter,  the 
Supreme  Court  must  have  declared  it  void,  as  to  the  state,  on 
account  of  the  imposition  practised,  or  that  the  state  would  have 
been  justifiable  in  refusing  to  pay  their  subscription  of  $-0,000. 
The  legislature,  however,  having  waived  their  right,  the  charter  is 
valid  as  to  the  state.  But,  there  has  been  no  waiver  by  the  sub- 
scribers, who  subscribed  on  the  faith  of  the  law,  which  assured 
them  that  they  should  contribute  with  subscribers  for  six  hundred 
shares,  but  are  afterwards  called  on  to  contribute  double  the  sum 
•with  half  "the  number  of  shares.  .The  defendant  has  not  waived 
any  right  to  resist  this  imposition  so  far  as  he  is  affected,  and  he 
stands  discharged,  in  consequence  of  the  fraud,  from  his  obligation 
to  the  company. 

The  last  error  assigned  is,  that  the  court  erred  in  their  answer  to 
the  defendant's  third  point,  in  saying,  that  the  commissioner  had 
no  power  or  authority  to  promise  or  engage  to  take  payment  in 
work.  Mr.  Reynolds,  in  the  presence  of  one  of  the  commissioners, 
after  the  defendant  had  refused  to  subscribe,  urged  as  a  means  to 
prevail  on  him  to  subscribe,  that  he  could  pay  it  in  blacksmith 
•work,  and  on  this  assurance,  obtained  the  defendant's  subscription. 
This  declaration,  made  in  the  presence  of  the  commissioner,  and  not 
objected  to  by  him,  is  to  be  taken  as  his  declaration,  nor  is  it  correct 


June  1830.]  OF  PENNSYLVANIA.  437 

[McConachy  v.  C.  <fc  K.  Turnpike  Co.] 

to  say,  that  the  law  draws  a  distinction  between  the  commissioner 
and  the  corporation  in  regard  to  this  promise.  I  hold  the  promise 
to  be  so  far  binding  on  the  corporation  as  to  prevent  it  from 
recovering  of  the  defendant,  contrary  to  the  terms  on  which  he  sub- 
scribed.1 See  Hill  v.  Ely,  5  S.  &  11.  363  and  Miller  v.  Hender- 
son, 10  Id.  290.  The  opinion  of  the  court  is  that  the  plaintiff  in 
error  has  sustained  the  errors  above  adverted  to. 

Judgment  reversed,  arid  venire  facias  dc  novo  awarded. 

Referred  to,  I  Gr.  2S3,  295;  13  Smith  3S6. 
Commented  ou  and  distinguished,  1  C.  220  ;  10  C.  40 1. 


Dean  against  Patton. 

The  trustee  of  an  insolvent  debtor,  having  in  his  own  name  sued  a  mort- 
gage given  to  the  insolvent,  obtained  a  judgment  and  issued  a  levari  facias 
thereupon  ;  by  virtue  of  which  the  sheriff  sold  the  mortgaged  promises  and 
received  the  purchase-money  :  llrld,  that  in  a  suit  brought  against  the  sin-riff 
to  recover  the  money  from  him,  lie  cannot  set  up  as  a  defence  that  the  trustee 
had  never  given  bond  as  required  by  the  Act  of  Assembly. 

WRIT  of  error  to  the  special  court  of  Common  Pleas  of  Hun- 
tingdon county. 

The  only  question  of  law  which  was  urged  in  this  court,  grew 
out  of  the  following  facts  : 

Alexander  Dean  was  the  surviving  assignee  of  Benjamin  David- 
son, an  insolvent  debtor,  and  as  such,  in  his  own  name,  issued  a 
scire  facias  on  a  mortgage  given  by  James  Clark  to  the  said  Benja- 
min Davidson,  obtained  a  judgment  thereupon,  and  issued  a  levari 
facias  directed  to  John  Patton,  the  defendant,  then  sheriff  of  Hun- 
tingdon county,  upon  which  he  sold  the  mortgaged  premises  for 
$2470,  and  received  the  purchase-money.  This  action  for  money 
had  and  received  for  the  plaintiff's  use,  was  then  brought  against 
him  to  compel  him  to  pay  it  over  ;  to  which  he  set  up  a  defence, 
that  the  plaintiff  had  not  given  bond  with  security,  as  trustees  of 
insolvent  debtors  are  required  by  the  Act  of  Assembly  to  give 
before  suit  brought. 

The  court  charged  the  jury  on  the  other  points  in  the  cause,  and 
reserved  the  point  above  mentioned. 

The  jury  found  a  verdict  for  the  plaintiff,  but  the  court  being  of 
opinion  that  the  objection  to  the  plaintiff's  recovery  was  fatal, 
entered  judgment  for  the  defendant. 


s,  for  plaintiff  in  error.  —  The  right  of  the  plaintiff  to  have 
the  money,  had  been  established  by  the  judgment  on  the  mortgage; 

1  As  to  this  point,  the  principal  case  has  been  overruled,  see  IS  $nmh  259. 


438  SUPREME  COURT  [Sunbury 

[Dean  v.  Patton.] 

it  had  passed  in  rem  judicatum,  and  a  sheriff  could  not  collaterally 
controvert  that  right:   Dawson  t>.  Ewing,  10  S.  &  R.  371. 

The  plaintiff  in  this  suit  sues  in  his  own  individual  right,  and 
the  plea  of  non  assumpsit  admits  the  character  in  which  he  sues : 
McKiram  'v.  Riddcll,  2  Dall.  100. 

Potter  and  Blauchard,  for  defendants  in  error. — The  plaintiff 
claims  the  money  as  trustee  of  Davidson,  and  he  must  show  that  ho 
has  qualified  himself  under  the  Act  of  4th  April  1798,  before  he 
can  sustain  a  suit.  Upon  his  neglect  or  refusal  to  give  bond,  the 
court  may  appoint  another  trustee:  Willis  v.  Row,  3  Yeates  520; 
Cooper  v.  Henderson,  6  Binn.  189.  Under  the  plea  of  non  assump- 
Bit,  the  defendant  may  avail  himself  of  the  defence  that  no  bond  has 
been  given :  Kennedy  v.  Ferris,  6  S.  &  R.  397 ;  Park  v.  Graham, 
4  Id.  549. 

Hale,  in  reply. — If  the  court  should  be  of  opinion  that  the  judg* 
mont  should  be  reversed,  they  will  enter  judgment  for  the  plaintiff 
below  upon  the  verdict. 

PER  CURIAM. — The  sheriff  is  an  officer  of  the  law,  but  for  the 
benefit  of  those  who  are  entitled  to  his  services ;  and  to  suffer  him, 
instead  of  serving  the  plaintiff  in  an  execution,  to  baffle  him  by 
disaffirming  his  right  to  the  money,  although  solemnly  adjudged  in 
an  action  between  the  proper  parties,  would  be  vexatious  and 
oppressive.  No  sheriff  ever  thought  of  alleging  as  to  a  pretext  for 
retaining  money  in  his  hands,  that  the  plaintiff  had  recovered  under 
void  letters  of  administration.  His  plain  duty  is  obedience  to  the 
mandate  of  the  writ,  by  having  the  money  ready  for  the  plaintiff 
before  the  court.  On  the  other  hand,  although  the  sheriff  will  not 
be  allowed  to  dispute  the  plaintiff's  title,  the  court  will  take  care 
that  the  creditors  of  the  insolvent  be  properly  secured  before  the 
plaintiff  has  leave  to  take  the  money  out  of  court;  and  thus  sub- 
stantial justice  will  be  done  without  delay. 

Judgment  of  the  court  below    reversed,   and  judgment 
upon  the  verdict  for  the  plaintiff. 


June  1830.]  OF  PENNSYLVANIA.  439 


Smiley  agaimt  Dixon  et  al. 

A.  being  the  owner  of  a  tract  of  unimproved  land,  sells  one  hundred  acres 
to  H.  and  one  hundred  acres  to  (J. :  1».  and  (J.  <ro  ujion  the  ground  and 
mark  a  division  line  between  them  ;  it  was  afterwards  discovered  that  A.  had 
no  title  to  the  land:  B.  then  went  upon  it,  had  a  survey  made  of  four 
hundred  acres,  including  the  one  hundred  acres  sold  to  (J.  and  acquired  title • 
by  actual  settlement.  Held,  that  there  was  not  such  a  privity  of  estate  or 
title  between  li.  and  C.  as  to  prevent  B.  from  thus  acquiring  for  him>clf,  a 
title  to  the  whole  of  the  land. 

WRIT  of  error  to  the  Common  Picas  .of  Clearfield  county. 

This  was  an  action  of  ejectment  brought  by  Robert  Smiley,  the 
plaintiff  in  error  and  plaintiff  below,  against  Robert  Dixon,  Benja- 
min  Carson  and  James  Carson. 

The  case  was  this :  Robert  Maxwell  was  the  agent  of  John 
Mitchell,  with  authority  to  sell  certain  lands  in  Clearfield  county, 
and  being  indebted  to  Robert  Smiley,  the  plaintiff,  he  agreed  to  sell 
to  him  one  hundred  acres  of  the  land,  in  consideration  of  the  debt. 
About  the  same  time,  Maxwell  also  agreed  to  sell  the  other  hundred 
acres  of  the  same  tract  to  Benjamin  and  James  Carson,  the  defend- 
ants, at  $1.~>0  per  acre,  out  of  which  wa.s  to  be  deducted  a  debt 
due  to  them  also.  Maxwell  afterwards  went  upon  the  ground 
with  Smiley  and  the  Carsons  and  marked  the  division  line  between 
them.  The  agreement  between  them  was  that  Mitchell  was  to 
make  the  titles.  Soon  after  this,  Smiley  and  the  Carsons  discovered 
that  neither  Maxwell  nor  Mitchell  had  any  title  to  the  land.  At 
this  time  no  possession  had  been  taken  of  the  land  by  either  partv. 
Smiley  then  said  that  he  would  go  on  the  land,  improve  it,  and 
acquire  title  by  improvement,  and  hold  four  hundred  acres.  He 
did  move  on  it,  built  a  house,  cleared  land,  raised  grain,  and  made 
a  survey  to  include  the  land  in  question  and  which  is  the  part  which 
Maxwell  sold  to  Benjamin  and  James  Carson.  About  two  vears 
afterwards,  Benjamin  and  James  Carson  went  upon  their  hundred 
acres,  put  a  small  house  on  it,  and  put  Dixon,  one  of  the  defend- 
ants, into  it  as  their  tenant.  It  was  also  in  proof,  that  before  the 
Carsons  went  on  the  land,  one  Dunlop  had  settled  upon  their  hun- 
dred acres  and  commenced  an  improvement,  and  in  conversation 
between  Dunlop  and  Carson,  he  told  Dunlop  that  lie  had  better 
not  make  an  improvement  for  Smiley  would  take  it  from  him. 

The  court  below  was  of  opinion,  and  so  instructed  the  jury,  that 
the  plaintiff  ought  not  to  recover,  on  the  ground  that  each  had  pur- 
chased the  one-half  of  the  same  tract  of  land,  each  had  expended 
his  money,  and  each  had  a  right  to  perfect  his  own  title  to  his 
respective  lot;  and  that  it  would  be  against  equity  and  justice  to 
permit  either  to  take  advantage  of  the  other,  inasmuch  as  they  had 
purchased  from  the  same  source,  with  a  perfect  knowledge  of  each 
other's  rights  and  had  been  equally  unfortunate. 


440  SUPREME  COURT  {Sunbury 

[Smiley  r.  Dixon.] 

The  jury  found  for  the  defendants  and  the  plaintiff  sued  out  this 
writ  of  error. 

Blanchard,  for  the  plaintiff  in  error. — The  law  as  laid  down  by 
the  court,  is  only  applicable  to  a  case  where  there  is  a  privity  of 
estate  or  interest  or  community  of  title,  and  such  is  the  case 
of  Vanhorn  r.  Fonda,  5  Johns.  Ch.  407,  upon  which  the  opinion  of 
the  court  below  in  this  case  was  predicated.  In  this  case  there  was 
no  privity  of  estate  or  community  of  title.  The  doctrine,  when  it 
does  apply,  is  founded  upon  a  trust,  which  did  not  exist  between 
Smiley  and  Carson,  for  their  titles  were  separate  and  distinct : 
cited  Walker  v.  Walker  16  S.  &  R.  384 ;  Dorsey  v.  Jackman,  1 
Id.  51. 

Valentine,  for  defendants  in  error. — The  conduct  of  Smiley  in 
procuring  his  title  to  the  prejudice  of  Carson,  taken  in  connection 
with  the  relation  which  existed  between  them,  was  a  fraud  which 
equity  will  not  sanction.  The  parties  lived  together,  consulted 
about  their  title,  talked  about  their  division  line,  and  with  a  full 
knowledge  of  each  other's  want  of  title,  Smiley  sneaks  off  and  com- 
mences an  improvement  not  only  to  perfect  his  only  title,  but  also 
take  from  Carson  his  title.  The  parties  had  a  community  of  title  ; 
for  each  purchased  the  same  title  from  the  same  person.  This  is 
an  action  in  which  the  plaintiff  seeks  to  have  the  equitable  powers 
of  the  court  administered  in  his  behalf,  which  his  conduct  does  not 
merit.  He  cited  4  Yin.  Ab.  388;  1  Fonb.  Eq.  125;  Dunning  v. 
Carothcrs,  4  Yeates  IT  ;  McPherson  v.  Cunliff,  11  S.  &  R.  427. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — (His  honor  here  stated  the  case.)  The  court  of 
Common  Pleas  instructed  the  jury,  that  as  both  plaintiff  and  de- 
fendants had  purchased  from  one  who  had  nothing  to  sell — mere 
moonshine — and  were  equally  unfortunate,  that  it  was  against 
equity  for  the  plaintiff  to  claim,  and  take  into  his  survey,  what  he 
knew  another  had  bought,  and  what  was  separated  by  a  line 
which  he  knew,  and  which  he  saw  run  and  marked.  That  as  they 
both  purchased  from  the  same  person,  the  one  could  not  hold  the 
land  which  was  to  have  been  given  to  the  other ;  and  the  court 
relied  on  the  case  of  Vanhorn  v.  Fonda,  ">  Johns.  Ch.  '5X8,  and 
Ligget  v.  Bechtol,  in  this  court.  If  Maxwell  had  title,  this  would 
have  been  right;  for  neither  could  obtain  fairly  from  him  what  he 
knew  was  by  agreement  to  be  conveyed  to  another.  But  it  is  ad- 
mitted that  Maxwell  had  not  even  color  of  title:  his  sale  then, 
and  purchase  from  him  is  literally  nothing,  even  if  there  had  been 
proof  that  his  agreement  with  Carson  had  assumed  any  definite 
shape.  Chancellor  Kent  decided,  that  one  of  two  devisees  could 


June  1830.]  OF  PENNSYLVANIA.  441 

[Smiley  v.  Dixon.] 

not  purchase  an  encumbrance  on  their  joint  estate,  and  use  it  to 
sell  the  land  and  strip  the  other  of  his  property  ;  and  in  Ligget  v. 
Bechtol,  this  court  decided  that  two  tenants  in  common,  who  had 
heard  of  an  adverse  title,  and  agreed  to  join  in  defending  against 
it,  or  in  purchasing,  were  bound  to  deal  fairly  with  each  other ;  and 
that  one  of  them  who  purchased  the  adverse  title  for  a  small  sum, 
must  hold  it  in  trust  for  the  other  upon  that  other  paying  his  propor- 
tion of  the  purchase-money ;  and  the  law  is  clearly  as  decided  in 
each  of  those  cases,  nay,  it  goes  farther ;  and  wherever  two  have 
a  joint  estate,  it  raises  a  duty  in  each  to  deal  fairly  with  the.other; 
arid  one  who  purchases  an  adverse  title,  will  not  be  allowed  to  sweep 
all  from  his  co-tenant ;  unless  some  special  circumstances  occur  in 
the  case.  In  this  case,  these  men  did  not  purchase  jointly,  neither 
had  anything  by  purchase  from  Maxwell;  they  were  not  joint  ten- 
ants, nor  tenants  in  common  ;  and  there  was  no  privity  between 
them.  The  bare  fact  that  each  had  been  cheated,  neither  gave  any 
right  to  the  other,  or  deprived  him  of  the  full  and  absolute  right  to 
purchase  from  the  real  owner,  when  discovered.  The  state  was 
the  owner ;  and  Smiley  purchased  from  the  state  by  his  actual  set- 
tlement. 

When  a  man  sells  a  defective  title,  and  afterwards  purchases  the 
real  title,  this  shall  be  in  trust  for  his  vendee,  from  whom  he  shall 
not  take  away  the  land  which  he  himself  sold.  And  when  one, 
present  at  a  treaty  of  sale,  advises  a  person  to  purchase  and  that 
the  title  is  good,  he  shall  not  afterwards  purchase  a  good  title,  and 
recover  the  land  from  one  whom  he  induced  to  buy  and  pay  his 
money :  Lane  v.  Reynard,  '2  S.  &  11.  Gf>.  This  does  not  come 
within  any  of  those  cases ;  nor,  as  is  believed,  within  any  decided 
case ;  nor  is  it  governed  by  any  principle  recognised  in  any  court. 
There  was  no  privity,  no  confidence  between  the  parties,  no  con- 
cealment by  Smiley,  and  nothing  done  by  him  to  induce  Carson  to 
purchase,  or  to  confide  in  their  purchase.  The  land  was  vacant  to 
be  taken  by  the  first  occupant ;  and  there  existed  no  obligation  of 
law  or  tie  of  conscience,  to  prevent  Smiley  from  taking  possession. 

It  was  however  said,  that  Smiley,  who  was  unmarried,  boarded 
at  Carson's  during  the  inception  of  his  improvement,  and  until  his 
house  was  fit  to  reside  in.  Of  itself  this  would  give  no  right  to 
Carson.  The  proof  is  that  before  and  during  the  time  of  improving, 
Smiley  said  he  would  hold  four  hundred  acres  by  his  improvement  : 
and  there  is  another  fact  which  shows  that  Carson  knew  this,  and 
acquiesced  in  it,  that  is,  that  he  told  Dunlop,  who  began  to  improve 
on  the  land  now  in  dispute,  after  Smiley,  that  Smiley  could  hold 
the  land  by  improvement,  and  Dunlop  moved  off.  This  was  a  ma- 
terial fact,  and  showed  that  Carson  knew  his  own  purchase  to  be 
worthless  ;  that  he  did  not  claim  under  it ;  that  he  knew  how  Smi- 
ley claimed  :  knew  of  the  extent  of  his  claim,  and  admitted  its  valid 
ity.  Taking  this  with  the  other  facts  in  the  cause,  we  are  at  a  loss 


442  SUPREME  COURT  [Sunbury 

[Smiley  r.  Dixon.] 

to  discover  any  principle  of  law  or  equity,  which  has  been  violated 
by  Smiley,  or  on  which  the  Carsons  can  rely  as  a  defence.  It  is 
ngt  enough  to  destroy  a  right,  that  some  men  would  have  scrupled 
to  have  acquired  it,  until  they  had  inquired  of  another  whether  he 
wished  to  purchase  it.  For  some  time  after  the  imposition  by  Max- 
well was  discovered,  the  land  was  open  to  occupation  by  the  Car- 
sons,  as  well  as  by  Smiley ;  they  do  not  enter,  they  know  Smiley 
is  acquiring  title ;  they  state  to  a  third  person  that  his  title  is  good. 
Years  afterwards,  when  the  general  improvement  of  the  country  ia 
adding  value  to  lands,  they  enter  under  pretence  of  what  is  con- 
ceded to  be  no  title.  This  conduct  savors  more  of  unfairness  than 
that  of  Smiley. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Referred  to  2  Barr  406 ;  1  C.  272 ;  4  Id.  424  ;  23  Smith  247. 


Engle  against  Nelson. 

A  special  plea  that  a  domestic  attachment,  grounded  upon  the  same  cause 
of  action,  had  issued  in  another  county,  and  is  yet  pending,  is  a  plea  ia 
abatement,  and  cannot  be  put  in  after  issue  joined  upon  a  plea  in  bar. 

The  rule  is  different  as  regards  a  popular  action  ;  there  the  pendency  of 
a  prior  action  extinguishes  the  title  of  every  one  else,  and  necessarily  bars 
the  right. 

WRIT  of  error  to  the  Common  Pleas  of  Centre  county. 

This  was  an  action  of  assumpsit  brought  by  John  Nelson,  the 
defendant  in  error,  against  George  B.  Engle.  Issues  were  joined 
upon  the  pleas  of  non  assumpsit  and  payment ;  after  which  the  de- 
fendant filed  the  following  plea  : 

And  the  said  George  13.  Engle,  by  T.  Burnsidc,  his  attorney, 
comes  and  defends  the  wrong  and  injury  when,  &c.,  and  says,  that 
he  ought  riot  to  be  charged  with  the  said  debt,  because  the  said  John 
Nelson,  on  the  Oth  of  February  181S>,  issued  out  of  the  Court  of 
Common  Pleas  of  Huntingdon  county,  against  the  said  George  B. 
Engle,  a  writ,  commonly  called  a  domestic  attachment,  for  the  same 
cause  of  action,  for  which  this  suit  is  brought ;  and  that  the  sheriff 
of  Huntingdon  county,  in  pursuance  of  the  said  writ  of  domestic 
attachment,  attached  of  the  property  of  the  said  George  B.  Engle, 
310  in  the  hands  of  John  Wall,  $80  in  the  hands  of  Thomas  Taylor, 
and  accounts,  judgments  and  money  in  the  hands  of  John  Morrison, 
Esq.,  and  Enoch  Hastings,  Esq.,  of  the  said  county  of  Huntingdon  ; 
and  the  said  court  did,  on  the  18th  April  IS  lit,  on  motion,  appoint 
John  Crawford,  Esq.,  David  McMutrie  and  Jacob  NefT,  auditors, 
to  settle  and  adjust  the  claims  of  the  several  creditors  of  the  said 
George  B.  Engle.  And  that  the  said  suit  is  still  pending,  and  not 


June  1830.]  OF  PENNSYLVANIA.  443 

[Englc  c.  Nelson.] 

finally  determined ;  and  this  he,  the  said  George  B.  Engle,  is  ready 
to  verify.  Wherefore  he  prays  judgment,  if  the  said  John  Nelson 
ought  to  have  or  maintain  his  aforesaid  action  thereof  against  him, 
&c." 

To  this  plea  the  plaintiff  refused  to  reply,  as  being  in  every  way 
incompetent  and  informal ;  and  the  court  would  not  require  them 
to  do  so,  but  considered  it  a  nullity.  To  this  opinion  the  defendant 
excepted,  and  here  assigned  it  as  error. 

Petriktn,  for  plaintiff  in  error. — A  foreign  attachment  pending, 
cannot  be  given  in  evidence  under  the  general  issue ;  but  must  be 
pleaded  specially:  Updegraff  v.  Spring,  11  S.  &  R.  188. 

Pendency  of  a  former  action  for  the  same  cause,  may  be  pleaded 
either  in  bar  or  abatement:  1  Bac.  Abr.  24,  tit.  Abatement. 

Potter,  contra. — If  the  plea  was  any  thing,  it  was  in  abatement, 
and  came  too  late :  Riddle  v.  Stevens,  '2  S.  &  R.  537  ;  Winner  v. 
Schlattcr,  15  Id.  150;  Wilson  v.  Hamilton,  4  Id.  238.  That  it 
was  a  plea  in  abatement:  1  Chit.  Plead.  443;  Embre  v.  Hannah, 
5  Johns.  It.  101 ;  Commonwealth  v.  Churchill,  5  Mass.  174. 

When  matter  is  pleaded  specially  which  may  be  given  in  evidence 
under  pleas  already  entered,  it  need  not  be  answered :  Pedan  v. 
Reed,  8  S.  &  R.  263;  Shaw  v.  Redmond,  11  Id.  27;  Riddle  et 
als.  i'.  Stevens,  2  Id.  544 ;  Barrington  v.  Washington  Bank,  14 
Id.  405. 

PER  CURIAM. — That  the  pendency  of  the  domestic  attachment 
in  Huntingdon  county,  was  clothed  in  the  drapery  of  a  special  plea 
in  bar,  can  impose  on  the  plaintiff  no  additional  obligation  to 
answer  it,  if  it  were  essentially  pleadable  only  in  abatement :  and 
it  is  necessarily  so,  where  it  goes,  not  to  the  plaintiff's  title,  but  to 
the  particular  action.  It  is  different  however  as  regards  a  popular 
action,  which  vests  the  property  of  the  thing  in  action,  in  the  party 
who  has  first  sued  for  it;  there  the  pendency  of  a  prior  action, 
which  extinguishes  the  title  of  every  one  else,  necessarily  bars  the 
right,  and  this  distinction  is  not  only  founded  in  technical  reason, 
but  recognised  by  the  best  elementary  writers:  1  Chit.  Plead.  443. 
As  a  plea  in  abatement,  then,  this  branch  of  the  defence  was  not 
only  grossly  defective  in  form,  but  produced  at  a  stage  of  the 
pleadings  when  it  was  decisively  inadmissible  :  and  the  court  wad 
perfectly  accurate  in  treating  it  as  a  nullity. 

Judgment  affirmed. 

Followed,  2  W.  &  S.  1209 


444  SUPREME  COURT  [Sunbury 


Irwin  against  Allen  et  al. 

A  power  of  attorney,  executed  by  an  administrator,  -who  does  not  therein 
style  himself  as  such,  by  virtue  of  which  a  dispute  is  settled  between  his 
intestate  and  a  third  person,  by  the  attorney  in  fact,  is  competent  evidence  to 
go  to  the  jury,  with  the  settlement  and  release,  particularly  if  it  did  not 
appear  that  the  administrator  had  any  account  in  his  own  right  to  settle. 

An  attorney  in  fact  is  a  competent  witness  to  prove  that  a  settlement  made 
with  him  for  his  principal,  upon  which  he  executed  a  release  to  the  party, 
was  obtained  by  a  misrepresentation  of  the  truth. 

ERROR  to  the  Common  Pleas  of  Mifflin  county.  The  plaintiffs 
in  error  were  the  plaintiffs  below. 

David  Allen,  Mary  Fetterman  and  another,  were  the  administra- 
tors of  George  Irwin,  deceased,  who,  together  with  their  sureties"  in 
their  administration  bond,  were  sued  in  the  name  of  the  Common- 
wealth, and  a  judgment  was  rendered  against  them  for  the  amount 
of  the  penalty.  After  which  a  suit  was  brought  by  the  present 
plaintiff  against  David  Allen  and  Mary  Fetterman,  surviving 
administrators  of  George  Irwin,  deceased,  in  which  he  recovered  a 
judgment  for  $1667.52.  Having  thus  liquidated  the  claim  due  to 
the,  estate  of  James  Irwin,  deceased,  his  surviving  administrator, 
James  Irwin,  issued  a  scire  facias  upon  the  judgment  in  the  name 
of  the  Commonwealth  to  recover  the  amount  due  to  the  said  estate 
by  the  defendants ;  which  is  this  cause. 

Issues  were  joined  upon  the  pleas  of  nul  tiel  record,  payment,  a 
release  and  accord  and  satisfaction. 

The  plaintiff  having  given  in  evidence  the  record  of  the  judg- 
ment, for  the  penalty  of  the  administration  bond,  and  the  judgment 
in  the  suit  brought  against  the  defendants  as  executors  of  George 
Irwin,  deceased,  rested. 

The  defendants  offered  in  evidence  a  power  of  attorney,  James 
Irwin  to  Clendeniri  Ross,  and  from  Clendenin  Ross  to  William 
Irwin,  and  an  agreement  entered  into  between  William  Irwin  and 
David  Allen,  by  which  the  claim  of  James  Irwin,  administrator  of 
James  Irwin,  deceased,  against  David  Allen  and  Mary  Fetterman, 
administrators  of  George  Fetterman,  deceased,  was  adjusted  and 
settled  by  the  payment  of  §300  to  the  said  William  Irwin. 

This  evidence  was  objected  to  by  the  plaintiff,  on  the  ground 
that  in  the  power  of  attorney,  James  Irwin  did  not  call  himself  the 
administrator  of  Jarnes  Irwin,  deceased,  nor  execute  it  as  such;  and 
that  the  agreement  was  not  executed  by  William  Irwin  as  the 
attorney  in  fact  of  James  Irwin  or  Clendenin  Ross,  but  in  his  own 


June  1830.]  OF  PENNSYLVANIA.  445 

[Irwin  v.  Allen.] 

name.  These  objections  having  been  overruled,  an  exception  was 
taken  by  the  plaintiff. 

The  plaintiff  then  offered  William  Irwin  as  a  witness,  to  prove, 
"  that  David  Allen  came  to  him  and  stated  that  there  was  no  part 
of  the  estate  of  George  Irwin,  deceased,  in  his  hands  ;  that  the  whole 
estate  had  been  disposed  of  in  the  payment  of  the  debts  of  the  intes- 
tate; that  he  would  pay  him  $300  if  he  would  give  him  a  release  ; 
that  Lawyer  Anderson  had  made  a  calculation  by  which  it  appeared 
there  was  not  $50  in  his  hands.  That  the  Witness  was  induced  by 
these  representations  to  sign  the  release.  And  to  follow  up  this  by 
proof,  that  at  that  time  the  administrators  of  George  Irwin  had  in 
their  hands,  estate  to  a  large  amount,  at  least  $3000,  and  that  the 
proportion  then  justly  due  to  the  plaintiff's  intestate  exceeded 
§1000." 

This  evidence  the  defendants  objected  to  :  1.  "William  Irwin  is 
not  a  competent  witness  to  prove  the  facts.  2.  It  is  not  an  offer  to 
prove  that  David  Allen  had  the  money  in  his  hands,  but  that  it  was 
in  the  hands  of  the  administrators.  3.  The  whole  offer  is  to  prove 
mis-statements  of  Allen,  and  to  set  aside  the  solemn  act  of  the  wit- 
ness himself,  when  the  office  was  open  to  him,  and  he  had  a  full 
opportunity  of  informing  himself  about  the  estate  ;  and  4,  the  whole 
offer,  if  believed  to  be  true,  is  not  such  evidence  of  fraud  as  to  zo 

O 

to  the  jury. 

The  court  sustained  the  exceptions  and  overruled  the  offer,  to 
which  the  plaintiff  excepted. 

Error  was  here  assigned  in  the  opinion  of  the  court  as  contained 
in  these  two  bills  of  exception. 

Potter,  for  the  plaintiff  in  error. — The  power  of  attorney,  and 
agreement  made  in  pursuance  thereof,  should  not  have  been  received 
in  evidence  to  defeat  a  claim  made  by  James  Irwin  in  his  represent- 
ative capacity  ;  for  it  was  not  executed  by  him  in  that  capacitv. 
There  is  no  rule  of  law  which  will  exclude  William  Irwin.  as  a  wit- 
ness, although  he  executed  the  agreement  in  his  own  name,  yet  he 
did  it  as  the  agent  of  James  Irwin,  for  he  had  no  interest  of  his  own 
to  settle.  His  evidence  did  not  tend  to  destroy  his  own  solemn  art. 
but  to  show  the  circumstances  under  which  it  was  executed.  Hut 
even  if  it  did,  it  would  not  render  the  testimony  illegal.  It  was  a 
matter  of  no  consequence  whether  it  was  Allen  who  had  the  estate 
in  his  hands,  or  his  co-administratrix,  for  they  were  jointly  and  sev- 
erally liable  for  it. 

Blanchard,  for  defendant  in  error. — The  plaintiff  having  derived 
advantage  from  the  power  of  attorney,  by  procuring  a  settlement  of 
his  intestate's  claim  under  it,  as  though  it  had  been  in  all  respects 
formal,  now  objects  to  it,  because  he  is  not  railed  administrator.  It 
does  not  appear  that  he  had  any  claim  on  the  defendants  in  his  own 


446  SUPREME  COURT  [Sunbury 

[Irwin  v.  Allen.] 

right,  but,  on  the  contrary,  it  is  manifest  that  the  authority  delegated 
was  to  settle  the  claim  due  to  the  estate  of  his  intestate. 

If  all  the  facts  offered  and  contained  in  the  second  bill  of  excep- 
tions were  strictly  true,  they  would  not  amount  to  a  fraud,  such  as 
would  avoid  the  agreement  and  release.  The  estate  may  have  been 
in  the  hands  of  Mary  Fetterman,  and  in  jeopardy,  and  if  so,  it  would 
be  perfectly  fair  for  David  Allen,  although  liable,  to  buy  himself 
out  of  the  liability. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — There  is  nothing  in  the  first  objection.  Although 
the  letter  of  attorney  is  given  by  James  Irwin,  without  stating  him- 
self to  be  the  administrator  of  James  Irwin,  deceased,  yet,  it  is  plain 
it  is  a  letter  of  attorney  in  the  suit  in  which  the  compromise  was 
made,  and  was  given  by  the  administrator  as  such,  and  with  a  view 
to  a  settlement  of  that  suit.  It  would  be  unjust  that  the  estate 
should  reap  the  fruits  of  the  compromise,  and  afterwards  avoid  the 
agreement,  because  the  administrator  had  omitted  to  describe  him- 
self, in  his  representative  capacity.  If  it  had  been  shown  that 
Irwin  had  any  accounts  against  the  estate  of  George  Irwin,  in  his 
own  right,  and  that  he  had  disclaimed  the  act  of  the  attorney,  there 
might  have  been  some  color  for  the  objection.  But  in  the  Absence 
of  all  proof  to  the  contrary,  ut  res  mayis  valeat  quam  pereat,  we 
must  refer  the  transaction  to  the  character  in  which  he  alone  had 
any  demands  against  the  defendants. 

After  the  admission  of  the  agreement,  the  plaintiff  offered  to  prove 
that  David  Allen  came  to  him,  and  stated  that  there  was  no  part  of 
the  estate  of  George  Irwin  in  his  hands,  that  the  whole  estate  had 
been  disposed  of  in  payment  of  the  debts  of  the  intestate,  and  that 
he  would  pay  him  $-300,  if  he  would  give  him  a  release ;  that  Allen 
stated  that  Lawyer  Anderson  had  made  a  calculation,  by  which,  he 
said,  it  appeared  there  was  not  8">0  in  his  hands.  This  to  be  fol- 
lowed up  by  proof,  that  at  the  time  the  administrator  of  George 
Irwin  had  then  of  the  estate  in  their  hands  at  least  $3000,  and  that 
the  proportion  then  justly  due  to  plaintiffs  exceeded  $1000. 

We  are  to  take  it,  that  the  plaintiff's  could  prove  their  offer,  and 
if  so,  we  have  the  case  of  a  person  defrauded  out  of  upwards  of 
§700,  by  the  false  and  fraudulent  representation  of  his  own  trustee. 
This  cannot  be  allowed ;  for  the  law  exacts  the  utmost  good  faith 
from  one  acting  as  a  trustee.  It  has  been  repeatedly  decided  that 
the  guardian  or  executor  shall  not  be  permitted  to  speculate  at  the 
expense  of  the  ward  or  personal  representatives.  Nor  can  I  per- 
ceive in  what  respect  the  creditors  are  placed  in  a  worse  situation, 
as  the  administrator  is  as  much  the  trustee  of  the  creditors  as  the 
personal  representative.  It  matters  not  that  the  administrator  de- 
rives no  benefit  from  the  compromise.  The  creditors  have  a  right 


June  1830.]  OF  PENNSYLVANIA.  447 

[Irwin  v.  Allen.] 

to  complain  that  their  interests  have  been  sacrificed,  by  a  person 
whose  duty  it  was  to  protect  them,  and  whether  this  be  done  for  the 
benefit  of  himself  or  others,  is  totally  immaterial  to  him.  It  may 
lessen  the  moral  turpitude  of  the  transaction,  that  the  administrator 
derives  no  benefit  from  the  agreement;  yet  the  loss  remains  the 
same  to  the  creditor,  whoever  may  profit  by  his  false  and  fraudulent 
representations.  When  we  consider  that  the  administrator  is  usually 
one  of  the  heirs,  or  a  relative  or  friend  of  theirs,  there  is  great  rea- 
son that  the  court  should  be  vigilant  to  protect  the  rights  of  creditors. 
As  the  administrator  has  the  full  knowledge  of  the  estate,  it  is  a 
violation  of  his  duty,  to  be  guilty  of  any  concealment  in  respect  to 
it.  Such  a  course  of  conduct  is  fraudulent  and  void. 

As  the  facts  offered  were  evidence,  there  is  no  doubt  the  attorney 
in  fact  was  a  competent  witness  to  prove  them  ;  he  has  no  interest 
whatever  in  the  event  of  the  suit. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


Adams's  Appeal. 

A  mortgage  unrecorded  in  tho  lifetime  of  the  mortgagor,  has  no  prefer- 
ence over  otlier  specialty  debts,  out  of  the  proceeds  of  the  sale  l>y  the  sheriff 
of  the  mortgaged  premises,  after  the  decease  of  the  inort^ajjor. 

Tins  was  an  appeal  by  John  Adams  from  the  decree  of  the  Court 
of  Common  Pleas  of  Huntingdon  county,  distributing  the  proceeds 
of  the  sale,  by  the  sheriff,  of  the  real  estate  of  James  Adams,  de- 
ceased. 

James  Adams,  in  his  lifetime,  being  the  owner  of  a  tract  of  land, 
executed  a  mortgage  upon  it  to  John  Adams,  to  secure  the  payment 
of  a  certain  debt;  he  also  became  indebted  to  several  other  persons 
by  specialties,  and  died.  After  his  death  the  mortgage  was  put 
upon  record,  sued  and  judgment  obtained  thereon.  The  same  laud 
was  then  sold  on  an  execution  by  the  sheriff,  and  the  money  brought 
into  court  for  appropriation  :  and  the  question  presented  to  the 
court  was,  whether  the  unrecorded  mortgage  was  entitled  to  a  pre- 
ference over  the  other  debts  of  James  Adams,  deceased,  which  were 
secured  by  specialties. 

The  court  below  made  a  decree  distributing  the  proceeds  of  the 
sale  pro  rata  among  all  the  specialty  creditors  of  the  deceased, 
including  the  mortgagee;  from  which  decision  John  Adams  ap- 
pealed. 

RfU,  for  appellant. — An  unrecorded  mortgage  is  good  against  the 
mortgagor,  the  recording  act  being  only  intended  to  protect  subse- 
quent judgment-creditors  and  purchasers.  A  creditor  of  the  mort- 


443  SUPREME  COURT  [Sunbury 

[Adam's  Appeal.] 

gagor,  unless  he  be  a  lien-creditor,  cannot  take  advantage  of  the 
want  of  recording  of  the  mortgage,  which  the  mortgagor  himself 
could  not  take :  Levine  v.  Will,  1  Dall.  430.  The  mortgagee  might 
have  sustained  an  ejectment,  and  recovered  the  land  itself:  Smith 
v.  Shuler,  13  S.  &  R.  240.  Having  thus  an  equitable  specific  lien 
on  the  land,  he  is  entitled  to  a  preference  over  die  specialty  cred- 
itors. 

Potter,  for  defendant  in  errror,  whom  the  court  declined  to  hear. 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — The  moment  a  man  dies,  leaving  debts,  every  one  of 
his  creditors  has  a  lien  on  his  estate.  Such  debts  have  their  various 
grades,  fixed  by  the  death  of  the  debtor,  and  all  specialty  debts 
come  in,  and  are  to  be  paid  equally.1  The  law  requires  a  mortgage 
to  be  recorded  in  six  months,  and  no  estate  will  pass  by  it,  unless 
recorded  within  that  period.2  It  is  true  the  Act  of  Assembly  was 
made  for  the  protection  of  mortgagees  ;  but  like  others,  they  may 
lose  their  lien  and  their  protection  by  neglect.  "  Liens,"  said  the 
present  chief  justice,  in  delivering  the  opinion  of  this  court  in  Kauf- 
felt  v.  Bower,  7  S.  &  R.  64, "  are  permitted  ;  but  those  who  have 
them,  are  laid  under  severe  limitations  and  restrictions.  Thus,  by 
Act  of  Assembly  a  judgment  continues  a  lien  for  but  five  years, 
unless  within  that  period  it  be  revived  by  scire  facias ;  and  by  the 
Acts  of  1715  and  1775,  no  mortgage  could  affect  the  land,  unless  it 
were  recorded  within  six  months  from  the  date.  This  has,  however, 
been  altered  in  some  respects  by  an  act  of  the  last  session."  The 
owner  of  this  mortgage  having  neglected  the  requisition  of  the  law 
in  regard  to  the  recording  of  it,  it  is  only  to  be  considered  as  a  spe- 
cialty. In  fact,  to  give  to  it  now,  the  validity  of  a  regular  mortgage, 
would  repeal  the  Acts  of  the  28th  of  May  1715,  and  of  the  28th  of 
March  1820,  and  of  the  14th  section  of  the  Act  of  1704,  and  the 
tendency  of  the  decision  would  be  to  defeat  all  the  valuable  purposes 
of  those  enactments.  Nothing  favorable  to  the  claim  of  the  execu- 
tors of  John  Adams,  can  be  drawn  from  any  of  the  decisions  made 
in  England  or  other  countries,  where  the  laws  do  not  require  mort- 
gages to  be  recorded,  for  our  recording  acts,  by  their  very  terms, 
have  put  those  decisions  all  out  of  the  question. 

Decree  affirmed. 

1  See  24  February  1*34,  g  21,  P.  L.  76. 
*  Sec  Nice's  Appeal,  4  Smith  201. 

Commented  on,  4  I'arr  12o. 

Followed,  4  Smith  202. 


June  1830.]  OF  PENNSYLVANIA.  449 


McKee's  Case. 

The  Circuit  Court  has  no  appellate  jurisdiction  of  proceedings  in  the  Quar- 
ter Sessions,  when  not  according  to  the  course  of  the  common  law  ;  hence 
it  has  not  jurisdiction  of  a  proceeding  against  a  husband  for  deserting  his 
wife  and  children. 

The  Circuit  Court  may  remove  a  cause  by  habeas  corpus,  with  a  view  to 
the  trial  of  an  issue,  but  it  can  only  do  so  when  the  issue  is  according  to 
the  course  of  the  common  law. 

JOHN  McKEE  having  deserted  his  wife  and  children,  she  made  an 
application  to  a  justice  of  the  peace  for  relief,  who  issued  a  warrant 
against  John  McKee,  commanding  the  constable  to  take  him  and 
bring  him  before  him,  that  he  might  be  bound  over  to  appear  at  the 
next  Court  of  Quarter  Sessions,  to  answer  the  complaint  of  his 
wife.  He  was  taken,  and  gave  security  for  his  appearance  at  the 
next  sessions,  when  his  attorney  made  the  necessary  certificate,  and 
removed  the  case  into  the  Circuit  Court.  It  came  on  to  be  tried  in 
the  Circuit  Court,  and  his  honor  Justice  Rogers  dismissed  the  cause 
and  complaint,  on  the  ground  that  the  Circuit  Court  had  no  juris- 
diction of  it.  From  this  decision  John  McKee  appealed  to  the 
Supreme  Court. 

Petrikin  and  Potter,  for  appellant. — The  Acts  of  the  9th  March 
1771,  section  30,  and  31st  March  1812,  section  6,  Purd.  Dig. 
659-679,  authorize  a  proceeding  by  overseers  of  the  poor,  in  cases 
where  the  wife  is  chargeable,  or  likely  to  become  so.  This  is  in 
the  nature  of  a  civil  proceeding  by  the  wife,  and  if  she  is  entitled 
by  any  taw  to  recover  money,  the  husband  would  be  entitled  to  a 
trial  by  jury  ;  and  if  so,  the  Circuit  Court  would  have  jurisdiction. 
Whenever  an  issue  is  to  be  tried,  that  court  has  jurisdiction  :  Woods 
v.  Woods,  17  S.  &  II.  12 ;  Light  v.  Light,  Id.  273 ;  Robbarts  v. 
Robbarts,  9  Id.  191 ;  Whart.  Dig.  463,  No.  175. 

Valentine  and  Blanchard,  for  aDoellee,  whom  the  court  declined 
to  hear. 

PER  CURIAM. — The  Circuit  Court  is  a  substitute  for  the  former 
Court  of  Nisi  Prius,  with  scarce  any  power  beyond  the  trial  of 
issues,  but  to  render  judgment  and  determine  appeals  from  the 
Register's  and  Orphans'  Courts.  There  was  no  necessity,  and  con- 
sequently no  design  to  give  it  the  general  powers  and  jurisdiction 
of  the  Supreme  Court  in  bane.  It  clearly  lias  no  appellate  juris- 
diction of  proceedings  in  the  Quarter  Sessions,  when  not  according 
to  the  course  of  the  common  law  ;  especially  of  a  proceeding  like 
the  present,  which  strongly  savors  of  a  civil  remedy,  and  which  is 
particularly  committed  to  that  court.  Even  the  Supreme  Court 
in  bane  could  take  cognisance  of  it  only  for  the  purpose  of  quash- 

1  p.  &  W.— 29 


4oO  SUPREME  COURT  [Sunbury 

[Senser  ».  Bower.] 

ing  it  by  a  certiorari  after  judgment,  which  the  Circuit  Court  is 
expressly  restrained  from  granting ;  and  although  it  may  remove  a 
cause  by  habeas  corpus,  with  a  view  to  the  trial  of  an  issue,  it  can 
do  so  only  when  the  issue  is  according  to  the  course  of  the  common 
law :  beside  it  is  enabled  by  the  terms  of  the  Act  of  1790,  from 
which  it  derives  its  powers,  to  take  cognisance  of  nothing  from  the 
Quarter  Sessions  but  indictments.  The  present  is  not  a  proceeding 
for  alimony,  or  one  in  which  the  intervention  of  a  jury  can  be  had 
in  any  shape;  and  we  are  satisfied  that  the  judge  at  the  circuit 
pursued  the  proper  course  in  remanding  it  to  the  sessions. 

Order  of  the  Circuit  Court  affirmed. 


Senser  et  al.  against  Bower  et  ux. 

For  civil  purposes,  reputation  and  cohabitation  are  sufficient  evidence  of 
marriage. 

In  all  cases  of  conflicting  presumptions  on  the  subject  of  legitimacy,  that  in 
favor  of  innocence  shall  prevail. 

The  alienation  of  an  improvement  right  by  the  widow,  after  the  death  of 
her  husband,  leaving  an  infant  two  years  of  age,  will  not  bar  the  right  of 
such  infant  to  recover  the  land  when  it  arrives  at  full  age,  even  if  the  consider- 
ation received  by  the  widow  should  have  been  applied  to  the  support  and 
maintenance  of  the  child. 

Quaere,  Whether  there  can  be  an  abandonment  of  a  right  by  an  infant. 

ERROR  to  the  special  court  of  Centre  county  (Reed,  president). 

This  was  an  action  of  ejectment  for  one  hundred  and  fifty  acres 
of  land,  brought  by  Andrew  Bower  and  Susannah  his  wife,  against 
John  Senser  arid  others. 

The  evidence  upon  which  the  plaintiff's  title  was  founded,  was 
that,  about  17i>6,  Daniel  Zinn  left  the  house  of  a  neighbor,  with 
Catherine  Kitelinger,  for  the  purpose  of  being  married,  they  soon 
returned,  and  it  was  understood  that  they  were  then  man  and  wife ; 
that  they  lived  and  cohabited  together  as  such,  and  had  issue,  one 
daughter,  the  present  plaintiff.  That  about  171'8  they  moved  to 
the  land  in  dispute,  cleared  two  or  three  acres  and  fenced  it,  built 
a  cabin  and  stable,  and  resided  there  about  three  years,  when  Dan- 
iel Zinn  died. 

The  evidence  given  for  the  defendants,  as  they  contended,  estab- 
lished two  grounds  of  defence.  First,  they  proved  that  many  years 
before  the  alleged  marriage  of  Catherine  Kitelinger  with  Daniel 
Zinn,  she  and  Jacob  Kitelinger  left  the  house  of  a  neighbor  to  go 
and  be  married,  that  they  returned  soon  after  as  man  and  wife, 
lived  and  cohabited  together  as  such  for  several  years,  and  had 
issue,  two  sons  ;  that  Jacob  Kitelinger  went  to  the  western  country, 


June  1830.]  OF  PENNSYLVANIA  4f>l 

[Senser  v.  Bower.] 

and  had  been  absent  about  seven  years,  when  his  wife  married  Dan- 
iel Zinn  ;  there  had  been  a  report  that  he  was  dead,  but  about  a 
year  after  Daniel  Zinn  died  he  returned  and  took  up  with  his  wife 
again.  Upon  this  evidence,  the  defendants  contended  that  the 
second  marriage  of  Catherine  Kitelinger  was  illegal  and  void,  and 
the  issue  of  it  illegitimate ;  and  therefore  the  plaintiffs  could  not 
recover. 

The  second  ground  of  defence  was,  that  Upon  the  death  of  Dan- 
iel Zinn,  leaving  his  widow  and  infant  daughter,  the  present  plaintiff, 
the  actual  settlement  was  not  complete,  and  at  all  events  insufficient 
to  support  the  widow  and  child,  and  therefore  the  widow  sold  what 
right  they  had  to  one  Hinton,  under  whom  the  defendants  claim, 
and  have  been  in  possession  for  twenty-three  years  before  suit 
brought,  having,  during  that  time,  made  valuable  improvements. 
It  was  also  ifi  proof  that  Susanna,  the  plaintiff,  was  raised  and  sup- 
ported by  her  mother. 

Many  points  of  law,  growing  out  of  these  facts,  were  put  to  the 
court  by  the  counsel  on  one  side  and  the  other,  upon  which  they 
were  requested  to  instruct  the  jury,  all  of  which  were  resolved 
into  twa  questions:  1.  Whether,  under  the  evidence,  Susanna 
Bower  was  the  legitimate  daughter  of  Daniel  /inn,  upon  whom 
the  law  would  cast  an  inheritance  ;  and  2.  Whether  the  right 
which  Daniel  Zinn  had,  by  virtue  of  the  acts  done  upon  the  land, 
was  such  an  inheritance  as  the  law  would  cast  upon  the  heir ;  or 
whether  it  was  not  such  an  imperfect  right  that  might  pass  as  a 
chattel. 

The  court  below  was  of  opinion,  that  in  every  aspect  of  the  case, 
the  plaintiffs  were  entitled  to  recover,  and  so  instructed  the  jury. 
To  which  opinion  the  defendants  took  an  exception. 

Potter  and  Blanchard,  for  plaintiffs  in  error. — The  proof  of  each 
marriage  of  Catherine  Kitelinger  was  the  same,  and  the  first  mar- 
riage being  first  established,  no  other  marriage  could  be  established 
by  the  same  kind  of  proof;  the  same  witness  who  proved  the  mar- 
riage of  the  plaintiff's  father  and  mother,  also  proved  that  the 
mother  was  then  the  wife  of  Jacob  Kitelinger,  who  was  in  full  life. 
The  first  marriage  being  thus  proved  by  legal  evidence,  there  can 
be  no  presumption  of  a  second  marriage,  because  it  is  a  presumption 
of  crime.  The  children  of  the  first  marriage  are  certainly  legiti- 
mate, and  that  of  the  second  is  as  certainly  not  so. 

The  inceptive  right  to  the  land  in  dispute  was  sold  for  a  valuable 
consideration,  by  the  mother,  when  the  plaintiff  was  two  years  old, 
and  incapable  of  maintaining  that  right :  and  that  consideration 
applied  to  her  benefit  and  support:  can  she  now.  after  the  lapso  of 
twenty-three  years,  recover  this  land  from  the  defendants  who  have 
made  it  valuable  by  improvements,  and  who  never  had  notice  of 
any  claim  of  the  plaintiff.  The  plaintiff  is  now  claiming  in  an 


452  SUPREME  COURT  [Sunbury 

[Senser  r.  Bower.] 

equitable  action,  and  surely  she  is  met  by  a  superior  equity  in  the 
defendants  :  1  Yeates  523. 

An  infant  cannot  maintain  that  kind  of  occupancy  which  is  ne- 
cessary to  give  or  complete  a  right  under  the  Act  of  Assembly : 
Mobley  v.  Oeker,  3  Yeates  200 ;  Clark  v.  Hackethorn,  Id.  269 ; 
11  S.  &  R.  341.  The  effect  of  the  infant  receiving  the  benefit  of 
the  sale  by  the  mother :  2  Dess.  232 ;  3  Id.  20-24  ;  4  Id.  445. 
As  to  the  legitimacy  of  the  plaintiff:  3  Black.  Com.  92;  Davis  v. 
Houston,  2  Yeates  289.  As  to  the  lapse  of  time  before  suit 
brought :  Jackson  v.  Thomas,  16  Johns.  293 ;  Jackson  v.  Wheat, 
18  Id.  40 ;  5  Day  181 ;  Jackson  ex  dem.  v.  Ellis,  13  Johns.  118- 
40-513.  As  to  the  defendants'  want  of  notice:  Day  v.  Dunham, 
2  Johns.  Ch.  182 ;  Billington  v.  Welsh,  5  Binn.  129 ;  Jackson  v. 
Henry,  10  Johns.  185 ;  Hibernia  Turnmke  Road  v.  Henderson,  8 
S.  &  R.  219. 

Petrikin  and  Valentine,  for  defendants  in  error,  whom  the  court 
declined  to  hear. 

The  opinion  of  the  court  was  delivered  by 

GIBSON,  C.  J.—  -For  civil  purposes,  reputation  and  cohabitation 
are  sufficient  evidence  of  marriage :  and  there  is  evidently  enough 
in  the  case  to  show  that  the  plaintiff's  father  and  mother  were  mar- 
ried in  fact.  But  there  is  said  to  be  the  same  evidence  of  a  prece- 
dent marriage  of  the  mother  with  another  man,  who  was  alive  at 
her  second  marriage ;  and  hence  a  supposed  dilemma.  But  the 
proof  being  equal,  the  presumption  is  in  favor  of  innocence ;  and 
so  far  is  this  carried  in  the  case  of  conflicting  presumptions,  that 
the  one  in  favor  of  innocence  shall  prevail ;  Stark,  on  Ev.  pi.  4, 
1248-9.  It  must  be  admitted  that  this  principle  is  not  immediately 
applicable  here,  inasmuch  as  there  is  no  conflicting  evidence,  and 
the  facts  supposed  to  result,  are  consistent  with  each  other ;  but  it 
establishes  that  the  same  proof  that  is  sufficient  to  raise  a  presump- 
tion of  innocence  may  be  inadequate  to  a  presumption  of  guilt. 
To  say  the  least,  then,  the  jury  were  not  bound  to  draw  the  same 
conclusion  of  marriage  from  the  same  evidence,  without  regard  to 
consequences ;  and  to  have  instructed  them  that  they  were,  would 
have  been  error.  On  the  contrary,  they  were  bound  to  make  every 
intendment  in  favor  of  the  plaintiff's  legitimacy,  which  was  not 
necessarily  excluded  by  the  proof.  But  was  the  evidence  in  fact 
exactly  balanced  ?  The  presumption  of  marriage  from  cohabitation 
may  be  rebutted  by  evidence  of  separation  without  an  apparent  rup- 
ture: Jackson  v.  Clow,  18  Johns.  346.  And  here  there  was  a 
separation,  without  an  apparent  cause,  for  eleven  years,  which,  inde- 
pendent of  any  rule  of  presumption,  would  be  sufficient  to  give  the 
evidence  of  legitimacy  a  decisive  preponderance. 

The    facts   connected    with  the   remaining   point   are,  that  the 


June  1830.]  OF  PENNSYLVANIA.  453 

[Senser  v.  Bower.] 

plaintiff's  father  made  an  actual  settlement  on  the  land  in  1708, 
by  building  two  cabins  on  it  in  succession,  clearing  and  cultivating 
a  portion  of  it,  designating  his  boundaries  and  residing  on  it  till 
his  death  in  1800,  after  which  his  widow  sold  the  improvement  to 
a  person  under  whom  the  defendants  claim.  The  lessee  of  Mobley 
v.  Oeker,  3  Yeates  200,  and  the  lessee  of  Clark  v.  Hackethorn,  Id. 
269,  are  inapplicable  to  the  case  of  an  improvement  so  recent  :w 
the  present.  At  an  early  day  this  species  of  title  was  of  so  little 
account,  that  it  was  sold  as  a  chattel  in  a  course  of  administration, 
(2  Yeates  378) ;  but  in  1800,  it  had  gradually  acquired  the  con- 
sistence of  an  indefeasible  estate ;  and  although  it  might  still  be 
lost  by  abandonment,  the  evidence  of  an  intention  to  produce  that 
effect  was  required  to  be  clear  and  satisfactory.  Here  there  is  no 
pretence  of  abandonment,  as  both  parties  claim  by  the  improvement 
begun  by  Zinn,  the  title  to  which  was  clearly  in  his  daughter  when 
it  was  sold  by  her  mother ;  so  that  the  fifth  section  of  the  Limita- 
tion Act  of  1785  (which  has  been  held  to  operate  only  on  equitable 
titles  then  existing),  being  yet  out  of  the  way,  the  question  simply 
is,  whether  she  is  barred  by  her  mother's  alienation,  and  it  is  clear 
that  unless  there  is  something  peculiar  in  the  case,  she  is  not.  No 
equity  arises  from  the  supposed  application  of  the  price  to  her 
maintenance.  A  sale  for  that  object  could  be  ordered  only  by  the 
Orphans'  Court,  with  which  the  law  has  deposited  the  requisite 
discretion.  Neither  could  a  supposed  necessity  to  interpose  for  the 
preservation  of  the  inheritance  from  a  total  loss  by  abandonment 
of  the  improvement,  give  an  additional  sanction  to  the  act  of  the 
mother.  I  will  not  undertake  to  say  that  there  may  not,  even  at 
this  day  be  an  abandonment  by  an  infant.  Whether  anything 
but  an  intentional  relinquishment  of  the  title,  of  which  the  circum- 
stances are  but  evidence,  can  be  effectual,  and  whether  an  infant 
be  not  incapable  of  such  relinquishment,  by  reason  of  want  of  dis- 
cretion, are  points  that  may  hereafter  be  worthy  of  consideration. 
But  whatever  be  the  motive,  it  is  clear  that  a  parent  has  no  power 
to  divest  the  infant's  estate ;  and  we  discover  nothing  in  the  case 
to  induce  us  to  disturb  the  judgment. 

Judgment  affirmed. 

Referred  to.  5  R.    212. 

Followed,  3  Barr  263  ;  1  C.  327  ;  23  Smith  144. 


454  SUPREME  COURT  [Sunbury 


Addlcman  against  Masterson. 

It  is  a  fatal  objection  ton  (It-position  taken  to  be  read  in  evidence  in  a  cause, 
that  it  is  in  the  handwriting  of  an  attorney  concerned  in  the  cause,  or  specially 
employed  by  the  party  for  that  purpose,  unless  the  opposite  party  or  his 
attorney  be  present  and  consent  thereto. 

An  application  and  survey  may  be  abandoned,  but  whether  or  not,  depends 
on  the  facts  to  be  found  by  the  jury.  The  payment  of  fees  of  office,  of  sur- 
veying fees,  and  returning  the  survey,  are  facts  tending  to  repel  the  presump- 
tion of  abandonment. 

An  application  obtained  in  1766,  and  the  land  circumscribed  by  a  survey, 
marked  on  the  ground,  but  the  owner  of  the  survey  neglects  to  have  it 
returned  and  refuses  to  pay  the  surveying  fees,  and  it  continued  in  this  way 
until  1785,  when  a  warrant  issued  for  the  same  land  to  another:  Held, 
that  the  title  of  the  warrantee  shall  be  preferred. 

EKROR  to  the  special  court  of  Common  Pleas  of  Huntingdon 
county  (Reed,  president.) 

in  the  court  below  this  was  an  action  of  ejectment  brought  by 
Anthony  Masterson  against  John  Addlcman. 

The  plaintiff  gave  as  evidence  of  his  title — ISth  May  1784,  war- 
rant to  Walter  Hood,  u  for  three  hundred  acres,  on  a  creek  running 
into  the  Warrior-mark  run,  in  or  about  a  mile  from  the  mouth  of 
said  branch  and  about  two  miles  from  the  Warrior-mark,  in  the 
county  of  Bedford." — 19th  January  1785,  certificate  of  the  payment 
of  the  purchase-money,  30Z. — 25th  August  1785,  deed,  Walter 
Hood  and  wife  to  Phineas  Massey. — 29th  March  1787,  certificate 
of  the  return  of  survey. — 2d  October  1795,  deed,  Phineas  Massey 
to  Anthony  Masterson. 

The  defendant  then  gave  in  evidence. — 22d  October  1760,  appli- 
cation No.  1629,  of  Thomas  Morris,  for  three  hundred  acres,  "  to 
join  on  the  westerly  a  survey  on  a  large  run,  which  leads  into  the 
east  branch  of  Little  Juniata,  about  a  mile  eastward  from  the  path 
that  leads  from  Little  Juniata  to  Susquehanna,  in  Cumberland 
county."  William  Reed,  a  former  deputy-surveyor  of  the  district, 
was  then  called,  arid  a  draft  of  a  survey  of  the  land  in  dispute 
was  shown  to  him,  which  he  said  he  found  in  the  office,  when  he 
held  it  in  1821  ;  and  that  it  had  upon  it  the  handwriting  of  Richard 
Tea,  who  had  been  the  deputy -surveyor  of  the  district  in  1767. 
lie  and  all  the  other  witnesses  said  that  the  description  in  the  appli- 
cation of  Thomas  Morris  was  precisely  descriptive  of  the  land  in 
dispute. — 20th  April  1767,  deed,  Thomas  Morris  to  David  Kennedy. 
4th  June  1795,  order  of  the  board  of  property,  on  a  petition  for  a 
re,-survey. — 80th  November  1795,  another  order  of  the  board  of 
property  on  the  subject. — 21st  May  1796,  return  by  John  Cannon, 
deputy-surveyor,  bv  order  of  the  board  of  property. — 31st  May 
1796,' deed,  David  Kennedy  to  Michael  Kryder. — 18th  May  170?, 
patent  to  Michael  Kryder. — 16th  October  1797,  deed,  Michael 


June  1830.]  OF  PENNSYLVANIA.  455 

[Addleman  v.  MaatcrHon.j 

Kryder  and  wife  to  John  Addleman,  the  defendant.  It  was  also 
in  proof,  that  the  defendant's  survey  upon  the  ground,  corresponded 
with  the  draft  given  in  evidence,  which  was  found  in  the  office  of 
'the  deputy-surveyor;  and  upon  blocking  the  trees,  they  counted 
back  to  1707,  when  Richard  Tea  had  been  the  deputy-surveyor  of 
the  district. 

Some  evidence  was  also  given  to  show  that  Masterson  knew  of 
the  purchase  of  the  land  in  dispute  by  Addleman  from  Kryder  for 
a  valuable  consideration,  and  did  not  give  notice  of  his  claim  ;  but 
this  was  negatived  by  the  instruction  of  the  court  to  the  jury,  and 
their  finding. 

During  the  course  of  the  evidence,  the  defendant  offered  the  depo- 
sition of  Col.  John  Carson  ;  which  was  objected  to  by  the  plaintiff, 
on  the  ground  that  it  was  in  the  handwriting  of  William  Orbison, 
Esq.,  tlie  defendant's  attorney. 

Mr.  Orbison  sworn. — "  I  wrote  this  deposition  at  the  place  desig- 
nated ;  I  have  not  a  distinct  recollection  whether  Justice  Still  wa3 
in  the  room  all  the  time.or  not ;  I  remember  he  was  in  some  of  the 
time  ;  no  one  appeared  on  part  of  the  plaintiffs  ;  one  of  the  Addle- 
mans  was  there ;  I  was  requested  by  Messrs.  Potter  and  Blan chard 
to  attend  to  it ;  I  was  concerned  in  a  former  suit  with  Mr.  Kiddle 
as  counsel  for  the  defendant ;  Mr.  Addleman  spoke  to  me.  and  said 
he  would  pay  me  if  I  would  go  and  assist  him  to  take  this  deposi- 
tion. I  did  so  ;  he  never  paid  me  anything,  and  I  do  not  consider 
myself  engaged  in  this  cause  as  counsel.  I  did  appear  as  counsel 
in  the  cause,  and  my  name  is  marked." 

The  court  overruled  the  deposition,  to  which  opinion  the  counsel 
for  defendant  took  a  bill  of  exception. 

The  counsel  for  plaintiff  requested  the  court  to  charge  the  jury 
on  the  following  points. 

1.  That  unless  the  jury  arc  satisfied  that  the  persons  under  whom 
the  defendant  claims,  had  a  legal  survey  upon  the  ground  in  con- 
troversy, before  the  date  of  the  warrant  under  which  the  plaintiff 
claims,  the  plaintiff  is  entitled  to  recover. 

2.  That  unless  the  jury  have  satisfactory  evidence  that  a  survey 
was  made,  by  virtue  of  the  application  of  Thomas  Morris,  bv  the 
proper  deputy-surveyor,  before  the  date  of  the  warrant  to  \\  alter 
Hood,  the  law  will  presume  the  application  to   have  been   aban- 
doned. 

8.  That  even  if  the  jury  are  satisfied  that  a  survey  was  made 
by  the  deputy-surveyor,  by  virtue  of  the  application  of  Thomas 
Morris,  previous  to  the  date  of  the  warrant  of  Walter  Hood,  yet  if 
no  money  was  paid  on  the  application,  but  the  fees  of  the  office, 
and  no  surveying  fees  paid  before  the  date  of  the  said  warrant,  and 
the  survey  not  returned,  the  jury,  under  the  circumstances  of  this 
case,  may  consider  the  application  and  survey  to  have  been  aban- 
doned. 


456  SUPREME  COURT  [Sunbury 

[Addleman  r.  Masterson.] 

4.  That  the  deputy-surveyor  was  not  bound  to  return  the  survey 
until  his  fees  were  paid,  and  that  due  diligence  has  not  been  used 
in  this  case  to  perfect  the  title  of  the  defendant,  as  against  the  title 
of  the  plaintiff. 

The  counsel  for  defendant  requested  the  court  to  charge  the  jury 
on  the  following  points  : 

1.  That   if  the  jury  believe,   that  the  application  of  Thomas 
Morris,  under  which  the  defendant  claims,  is  descriptive  of  the 
land  in  controversy,  and  was  actually  surveyed  on  the  ground  in 
1767,  by  the  then  deputy-surveyor,  that  the  omission  of  the  deputy- 
surveyor  to  return  the  survey  into  the  office  until  1795,  does  not 
prejudice  the  defendant's  right,  and  that  he  would  be  entitled  to 
hold  the  land  in  preference  to  a  subsequent  warrant  and  survey  in 
1784. 

2.  That  the  doctrine  of  abandonment  does  not  apply  to  a  descrip- 
tive location  of  1766,  actually  surveyed  in  1767,  conveyed  by  deed 
poll  in  1767,  re-surveyed  in  1796,  on  an  order  of  the  board  of  pro- 
perty of  1794,  and  patented  in  1797,  and  can  have  no  bearing  on 
the  present  cause. 

3.  That  the  draft  found  in  the  office  of  the  deputy-surveyor,  en- 
dorsed by  Richard  Tea,  the  deputy-surveyor,  as  the  draft  of  Thomas 
Morris's  survey  on  his  location,  in  connection  with  the  lines  found 
on  the  ground,  is  prima  facie  evidence  that  the  survey  was  made  on 
Morris's  application  ;  and  unless  rebutted  by  other  testimony  is  con- 
clusive of  that  fact. 

The  court  in  their  answers  to  the  several  points  put  by  the  coun- 
sel on  the  one  side  and  the  other,  left  the  fact  for  the  jury,  whether 
the  delay  to  have  the  survey  upon  the  application  under  which  the 
defendant  claimed,  returned  for  nearly  twenty  years,  was  the  fault 
or  neglect  of  the  party ;  and  if  so,  upon  the  whole  case,  the  plain- 
tiff was  entitled  to  recover.  If  it  was  the  fault  or  neglect  of  the 
deputy-surveyor,  the  party  would  not  be  prejudiced  thereby. 

The  jury  found  a  verdict  for  the  plaintiff. 

Blanchard  and  Potter,  for  plaintrff  in  error. — Whether  the  loca- 
tion was  absolutely  descriptive  or  vague,  it  became  certain  when  it 
was  surveyed ;  and  there  could  then  be  no  presumption  of  aban- 
donment, although  the  surveying  fees  were  not  paid :  Lauman  v. 
Thomas,  4  Binn.  51 ;  Lessee  of  Biddle  v.  Dougal,  5  Id.  142.  The 
doctrine  of  abandonment  is  only  applicable  to  those  claims  to  land 
which  are  not  founded  upon  contract,  such  as  improvement  rights ; 
but  a  location  is  a  contract,  which  there  can  be  no  presumption 
would  be  abandoned,  unless  there  be  proof  of  facts  which  will  in- 
duce the  jury  to  believe  that  such  was  the  intention  of  the  party : 
Lilly  v.  Paschal,  2  S.  &  R.  395. 

A  deposition  written  by  an  attorney  in  the  cause  is  not  excep- 
tionable on  that  account ;  the  case  of  Summers  v.  McKim,  12  S.  & 


June  1830.]  OF  PENNSYLVANIA.  4.07 

[Addleman  c.  Masterson.] 

Rawle  406,  is  much  stronger  than  this ;  there  the  deposition  was 
not  written  in  the  presence  of  the  justice,  here  it  was,  and  by  one 
who  was  riot  an  acting  attorney  in  the  cause. 

Miles,  for  defendant  in  error,  whom  the  court  requested  to  con- 
fine himself  to  the  first  point. — No  money  was  paid  upon  the  loca- 
tion but  the  mere  fees  of  office,  7s. ;  and  the  jury  have  found  that 
the  surveying  fees  were  not  paid,  no  survey  returned  for  twenty- 
eight  years,  and  this  because  of  the  negligence  of  the  party.  No 
act  whatever  in  relation  to  the  land  in  dispute  had  been  done  by 
those  under  whom  the  defendant  claims,  for  nearly  twenty  years 
before  the  plaintiff's  title  commenced.  The  policy  of  the  law  will 
not  suffer  a  man  to  select  a  tract  of  land  and  just  do  such  acts 
respecting  it,  as  will  not  make  him  liable  to  pay  the  Commonwealth 
for  it,  but  will  prevent  the  Commonwealth  from  disposing  of  it  to 
another  who  is  willing  to  pay  for  it.  That  a  claim  like  that  of  the 
defendant  may  be  abandoned  is  fully  settled :  Gilday  v.  Watson, 
11  S.  &  R.  340 ;  Boyles  v.  Kelly,  10  Id.  217 ;  Chambers  v.  Mif- 
flin,  ante,  78. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — The  rejection  of  the  deposition  of  John  Cannon 
comes  within  the  principle  of  Summers  v.  McKim,  12  S.  &  R. 
410.  It  is  immaterial  whether  Orbison  was  concerned  in  the 
conduct  of  the  suit  or  not,  as  it  appears  he  was  specially  employed 
to  take  the  deposition  of  the  witness.  There  is  as  much  danger 
from  testimony  taken  under  such  circumstances,  as  when  the  attor- 
ney is  retained  generally  for  the  trial  of  the  cause.  Nor  would  it 
have  altered  the  case  if  Orbison  had  been  specially  authorized  to 
write  the  deposition.  It  is  not  competent  for  the  justice  to  make 
the  attorney  of  one  of  the  parties  his  clerk  to  take  a  deposition,  un- 
less with  the  express  consent  of  the  other  partv,  or  in  the  presence 
of  his  attorney  and  acquiesced  in  by  him.  We  concur  in  the  sen- 
timents of  the  chief  justice  in  Summers  v.  McKim,  and  feel  no 
disposition  to  relax  the  rule  established  in  that  ca.se. 

The  remaining  exceptions  apply  to  the  charge.  It  is  said  the 
court  were  in  error  in  instructing  the  jury  that  they  might  presume 
an  abandonment  of  the  defendant's  right,  under  the  application 
of  Thomas  Morris. 

It  was  in  evidence  that  on  the  22d  October  17(>t>,  Thomas  Mor- 
ris made  application  for  three  hundred  acres  of  land,  to  join 
westerly  a  survey  on  a  large  run,  which  leads  into  the  east  branch 
of  the  Little  Juniata,  about  a  mile  eastward  from  the  path  that 
leads  from  Little  Juniata  to  Susquehanna,  in  Cumberland  county. 
It  was  submitted  to  the  jury  as  a  question  of  fact,  whether  there 
had  been  a  survey  made  on  the  ground,  whether  the  survey  had 
been  returned  and  if  not  returned  the  reason  it  was  not.  The 


458  SUPREME  COURT  [Sunbury 

[Addleman  r.  Masterson.] 

court  was  requested  to  say :  that  unless  the  jury  had  satisfactory 
evidence  that  a  survey  was  made  by  virtue  of  the  application  of 
Thomas  Morris,  before  the  date  of  the  warrant  to  Walter  Hood,  the 
law  will  presume  the  application  to  have  been  abandoned.  That 
even  if  the  jury  are  satisfied  that  the  survey  was  made  previously 
to  the  date  of  the  warrant  to  Walter  Hood,  yet  if  no  money  was 
paid  on  the  application  but  the  fees  of  office,  and  no  surveying 
fees  were  paid  before  the  date  of  the  warrant  and  the  survey  was 
not  returned,  the  jury,  under  the  circumstances  of  the  case,  may 
consider  the  application  and  survey  to  have  been  abandoned.  The 
court  were  further  requested  to  charge  the  jury  that  the  doctrine 
of  abandonment  does  not  apply  to  a  descriptive  location  (which  it 
was  contended  this  was),  of  the  year  1766,  actually  surveyed  in 
1767,  conveyed  by  deed  poll  in  17(37,  re-surveyed  in  1796,  on  the 
order  of  the  board  of  property  of  1794  and  patented  in  1797. 

It  was  given  in  charge  to  the  jury,  that  an  application  and  sur- 
vey may  be  abandoned.  That  whether  there  was  an  abandonment 
or  not,  depended  on  the  facts  found  by  the  jury ;  but  that  pay- 
ment of  fees  of  office,  of  surveying  fees  and  returning  the  survey, 
are  facts  tending  to  repel  the  presumption  of  abandonment.  That 
if  the  application  was  obtained  in  1766,  and  the  land  circumscribed 
by  a  survey  marked  on  the  ground  but  the  owner  of  the  survey 
refused  to  have  it  completed  or  returned,  and  refused  on  that  ac- 
count to  pay  the  surveying  fees,  and  it  continued  in  this  way 
until  1785,  when  the  warrant  issued  to  Walter  Hood,  on  which 
he  made  his  survey,  the  latter  would  have  a  preference.  In 
this  direction  we  perceive  no  error.  On  the  contrary,  the  charge 
of  the  court  is  in  accordance  with  all  the  cases,  many  of  which 
have  been  cited  and  relied  on  in  the  argument  of  counsel.  The 
transaction  must  be  viewed  as  it  stood  in  1785,  when  Walter 
Hood  obtained  his  warrant  and  made  his  survey.  It  is  only 
by  shutting  our  eyes  to  the  state  of  things  at  that  point  of  time 
that  any  difficulty  can  arise ;  for  the  real  question  is,  might  the 
jury  presume  the  application  to  have  been  then  abandoned  or  was 
Morris  right  in  considering  the  application  abandoned  when  he 
obtained  his  warrant.  •  In  1785,  as  the  jury  have  found,  although 
Morris  had  made  an  application  for  the  land  and  had  made  a  sur- 
vey, yet  the  survey  had  not  been  returned,  because  the  owner  of 
the  survey  had  not  paid  the  surveying  fees.  The  failure  to  return 
the  survey  is  not  the  fault  of  the  deputy-surveyor,  but  arises  from 
the  act  or  neglect  of  the  party  himself,  for  the  deputy-surveyor, 
as  has  been  decided,  is  not  bound  to  return  the  survey  until  the 
surveying  fees  have  been  paid.  It  would  have  the  most  mischievous 
effect  if  it  were  competent  to  an  individual  to  put  in  an  applica- 
tion on  which  he  pays  no  money  to  the  Commonwealth  with  a 
description  which  may  apply  as  well  to  other  tracts,  have  a  survey 
made  upon  it  and  then  by  his  own  act  or  neglect,  without  any 


June  1830.]  OF  PENNSYLVANIA.  4,09 

[Addlemsn  v.  Masterson.] 

default  in  the  deputy-surveyor,  withhold  the  return  of  .survey  for 
near  twenty  years.  It  would  operate  very  much  to  the  injury  of 
the  Commonwealth,  as  it  would  enable  individuals  to  obstruct  the 
improvement  of  the  country,  by  preventing  the  Commonwealth  from 
making  a  new  grant  of  the  land.  Even  a  precisely  descriptive- 
warrant  must  be  followed  up  with  reasonable  attention,  in  order  to 
give  title  from  its  date  ;  so  also  the  same  course  must  be  pursued 
on  a  vague  warrant,  to  give  title  from  the  time  of  survey.  If  the 
owner  of  a  vague  or  removed  warrant  suffers  it  to  remain  un re- 
turned, for  more  than  twenty-one  years,  and  during  that  time  has 
exercised  no  acts  of  ownership  upon  land,  the  state,  or  any  person, 
has  a  right  to  consider  it  as  derelict,  and  whoever  purchases  and 
pays  for  the  land,  under  such  circumstances,  has  a  good  title : 
Chambers  v.  Mifilin,  ante,  74.  Mr.  Justice  Huston,  in  delivering 
the  opinion  of  the  court,  says,  "  although  a  warrant  has  been  sur- 
veyed, yet  if  not  returned,  the  owner  may  change  its  lines,  or 
change  its  place  altogether,  and  lay  it  on  any  other  vacant  land  any 
where  near ;  until  it  is  returned,  the  state  has  no  power  to  collect 
arrears  of  purchase-money.  It  never  can  be  that  a  man  can  wait 
thirty  or  forty  years,  and  all  that  time  be  able  to  say  this  is  my  land 
if  I  please,  and  not  mine  unless  I  please.  I  will  take  the  land  and 
pay  the  state  for  it,  if  the  country  improves,  and  it  rises  in  value, 
or  if  somebody  will  render  it  valuable  by  improvement ;  but  I  will 
not  take  it,  and  pay  the  purchase-money,  unless  something  occurs 
to  render  it  more  valuable.  Nor  is  it  the  law  that  a  man  can  com- 
mence procuring  a  title  from  the  state,  and  from  pure  negligence 
leave  it  in  such  a  situation  for  more  than  twenty  years,  as  that  he 
is  not  bound  to  take  it,  and  no  one  safely  can." 

The  plaintiff  in  error  relies  upon  the  re-survey  in  1700,  on  the 
order  of  the  board  of  property,  in  1794,  and  the  patent  in  1797  ; 
and  this  to  be  sure  would  be  strong  evidence,  that  after  1785  the 
owner  of  the  application  would  not  wish  to  be  considered  as  having 
relinquished  title  to  the  land.  But  it  must  be  kept  in  view  that 
previously  to  this  time,  the  right  of  Walter  Hood  had  intervened; 
and  that  nothing  the  plaintiff  in  error  could  have  done  afterwards 
would  affect  that  right.  The  question  must  be  determined  upon 
the  titles  as  they  stood  at  the  time  of  the  warrant  and  survey  to 
Walter  Hood.  Judgment  affirmed. 

Roforred  to.  4  W.  140;  I  Jones  113  ;   11  Smith  4M. 
Commented  on,  12  II.  '279. 
Distinguished  S  W.  98,  W. 

Distinguished  and  commented  on,  4  W.  &.  S.  77. 

Followed,  2  P.  &  W.  202,  3'J5 ;  3  Id.  44 ;  5  W.  525 ;  1  W.  A  S.  173 ;  1 
Jones  IIU  ;  11  H.  277. 


460  SUPREME  COURT  [Sunbury 


Holdcn  et  s\.against  Bull. 

A  judgment  entered  upon  a  bond,  in  the  penalty  of  $100,  with  a  warrant 
to  confess  a  judgment,  having  a  condition  thereunder  written,  that  the  obli- 
gor will  pay  a  tine  and  bill  of  costs,  then  uncertain  us  to  amount,  is  valid. 

If  an  execution  issues  upon  such  a  judgment  for  the  penalty,  before  the  real 
amount  due  is  ascertained,  it  will  be  set  aside  on  a  writ* of  error. 

ERROR  to  the  Common  Picas  of  Bradford  county. 

Sortile  Holden,  together  with  Gustavus  A.  Holden,  as  his  secu- 
rity, executed  a  judgment-bond  to  "  the  treasurer  of  Bradford  county 
for  the  time  being,"  in  the  penalty  of  $100,  with  the  following  con- 
dition thereunder  written. 

"  That  the  said  Sortile  Holden,  one  of  the  subscribers,  shall  well 
and  truly  pay,  or  cause  to  be  paid,  a  certain  fine  and  bill  of  costs, 
agreeably  to  the  sentence  of  the  Court  of  Quarter  Sessions,  passed 
upon  the  said  Sortile  Holden,  in  consequence  of  a  suit  in  behalf 
of  the  Commonwealth  against  the  said  Sortile  Holden,  upon  which 
said  Holdcn  was  in  prison,  and  this  instrument  is  taken  to  cover 
fine,  and  all  costs  which  accrued  in  consequence  of  said  suit.  Wit- 
ness, &c." 

The  fine  and  costs  not  having  been  paid,  the  judgment-bond  was 
filed,  and  a  fieri  facias  issued  thereon,  when  this  writ  of  error  was 
sued  out  by  the  defendants,  who  assigned  the  following  errors. 

1.  The  judgment  is  entered  on  a  bond  or  promise,  conditioned 
for  the  performance  of  matters  contingent,  doubtful  and  uncertain, 
and  which  require  pleadings  and  trial. 

2.  The  face  of  the  instrument  shows  the  execution  issued  for  a 
sum  of  money,  which  was  not  judicially  decreed  to  the  plaintiff 

Ingham,  for  defendant  in  error,  whom  alone  the  court  heard  on 
the  second  error  assigned,  contended  that  a  writ  of  error  was  not 
the  proper  remedy  of  the  party  in  a  case  like  this.  There  was  no 
intention  to  collect  more  than  the  fine  and  bill  of  costs  off  the  de- 
fendants, and  if  there  was  any  injury  likely  to  result  to  them,  their 
proper  remedy  was  to  apply  to  the  court  below  to  protect  them,  or 
even  a  judge  at  his  chamber  may  grant  relief:  Lewis  v.  Smith,  2 
S.  &  R.  142 

Judgment  affirmed,  and  execution  set  aside. 

Referred  to,  8  W.  135. 


June  1830.]  OF  'PENNSYLVANIA.  461 


Stewart  et  al.  against  Baldwin. 

Costs  are  not  recoverable  by  either  party  in  an  action  of  partition. 
Costs  are  exclusively  a  matter  of  statutory  creation. 

ERROR  to  the  Common  Picas  of  Tioga  county. 

This  was  an  action  of  partition  brought  by  Elcazcr  Baldwin 
against  Nathan  Stewart  and  John  Bruce,  in  which  the  defendants 
plead  non  tenent  imimul.  The  cause  having  been  tried  by  a  jury, 
a  verdict  and  judgment  was  rendered  for  the  defendants.  A  fi.  fa. 
was  then  issued  against,  the  plaintiff  for  costs,  including  a  bill  of 
defendants'  witnesses,  amounting  to  $276. 1*7. 

The  plaintiff's  counsel  obtained  a  rule  to  show  cause  why  the 
fi.  fa.  for  costs  should  not  be  set  aside ;  on  the  ground  that  costs 
are  not  recoverable  in  an  action  of  partition  ;  which  at  a  subsequent 
term  was  made  absolute.  The  defendant  then  sued  out  this  writ 
of  error. 

Greenough,  for  plaintiff  in  error. — A  declaration  in  partition 
always  concludes  to  the  damage  of  the  plaintiff :  Plead.  Asst.  304. 
If  damages  are  recoverable  so  are  costs.  If  then  the  plaintiff  may 
recover  costs,  the  stat.  23  Hen.  8  gives  costs  to  the  defendant. 
Between  coparceners  damages  in  partition  are  not  recoverable,  but 
in  other  cases,  where  the  right  to  have  partition  is  denied,  they  are : 
2  Bac.  Abr.  45,  206;  stat.  17  Edw.  3,  ch.  71. 

Parsons  and  Willeston,  for  defendant  in  error. — No  damages  or 
mesne  profits  are  recoverable  in  an  action  of  partition,  but  may  be 
in  account-render:  2  Bac.  Abr.  44;  Roberts'  Dig.  207.  The 
stat.  23,  Hen.  8,  has  been  restrained  to  cases  of  personal  wrong: 
Penn.  Prac.  150 ;  Sayer  on  Costs,  tit.  Coparceners ;  Common- 
wealth v.  Commissioners  of  Philadelphia,  8  S.  &  11.  155.  Costs 
are  never  recoverable  except  by  a  statutory  provision. 

PER  CURIAM. — We  have  inquired  into  the  practice  since  the 
argument,  without  having  ascertained  that  there  has  been  a  depar- 
ture from  the  provisions  of  the  English  statutes,  according  to  which 
costs  are  not  allowed  in  partition  ;  and  however  unreasonable  this 
may  be,  yet  costs  being  exclusively  a  matter  of  statutory  creation, 
it  is  plain  that  the  remedy  lies  not  with  us,  but  with  the  legislature. 
The  judgment  for  the  defendant  without  costs  was  therefore  regular. 

Judgment  affirmed. 

Followed,  1  C.  347,  348. 


462  SUPREME  COt/RT  [Sunbury 

Commonwealth  ayaimt  Fisher. 
Same  against  Kichter. 
Same  against  K reamer. 
Same  against  Dcwurt. 

An  application  by  the  owners  of  property,  under  the  Act  of  9th  April 
1827,  for  damages  done  by  the  location  and  construction  of  the  Pennsyl- 
vania canal,  is  premature,  if  made  after  the  completion  of  the  canal  upon  the 
land  of  the  petitioner,  and  before  the  completion  of  that  division  of  the  canal 
upon  which  such  lands  are  located. 

The  right  of  the  state  to  take  and  use  for  public  purposes,  six  out  of  every 
hundred  acres  of  land  sold,  is  not  an  implied  right  but  an  express  reser- 
vation ;  the  state  infringes  upon  no  private  interest,  nor  does  it  injure  any 
man  by  using  this  right ;  the  utmost  that  can  be  required  is,  that  it  should 
pay  for  improvements  put  by  the  owner  on  such  part  as  the  state  should 
subsequently  use. 

When  an  Act  of  Assembly  requires  reasonable  notice  to  be  given,  by  one 
party  to  the  other,  ten  days  generally  would  be  sufficient. 

The  Acts  of  the  25th  February  1H26,  and  9th  April  1827,  on  this  subject, 
are  to  be  construed  in  connection  with  each  other,  and  by  such  construction 
it  is  necessary  that  the  viewers  appointed  to  assess  the  damages  done  to  the 
land  of  an  individual,  should,  in  their  report,  state  the  courses,  distances  and 
quantity,  with  such  references  as  will  designate  the  exact  property  converted 
to  the  use  of  the  state. 

When  the  approval  of  a  Court  of  Quarter  Sessions  is  required  by  an  Act 
of  Assembly  to  an  assessment  of  damages,  that  court  will  not  readily  set 
aside  a  report,  on  the  ground  that  the  damages  are  excessive,  yet  it  may  be- 
come their  duty  so  to  do.  It  would  be  a  much  stronger  case  which  would 
authorize  the  Supreme  Court  to  set  aside  a  report  on  that  ground. 

All  below  high-water  mark,  in  the  channel  of  the  Susquehanna  river,  is 
a  public  highway,  and  the  state  has  a  right  to  improve  it  by  deepening  it, 
or  it  may  raise  dams  in  it,  and  thus  swell  the  water;  and  if  in  so  doing,  a 
spring  which  rises  below  high-water  mark  is  covered  and  which  an  indi- 
vidual has  been  accustomed  to  use,  he  cannot  recover  damages  therefor,  under 
the  Act  of  Oth  April  1X27,  it  is  damntim  abxque  injuria. 

The  sixth  section  of  the  Act  of  the  10th  April  l<S2f>,  gave  authority  to  the 
commissioners  to  take  releases  to  the  Commonwealth  from  individuals,  through 
whose  lands  the  canal  might  be  thereafter  located. 

The  consideration  of  such  releases,  so  taken,  has  not  failed,  because  the 
eastern  and  western  waters  have  not  been  united  by  that  route  of  the  canal, 
along  which  the  rcleasors  live.  The  consideration  is,  that  the  canal  shall  pass 
through  the  land  of  the  releasor. 

IN  each  of  those  cases  a  certiorari  was  issued,  at  the  instance  of 
the  Commonwealth,  to  the  Court  of  Quarter  Sessions  of  Union 
county,  to  remove  the  proceedings  which  had  been  instituted  by 
the  defendants  severally,  to  recover  damages  for  injuries  done  to 
their  property,  by  reason  of  the  construction  of  the  Pennsylvania 
canal. 

The  same  exceptions  which  were  filed  in  the  court  below  to  the 
confirmation  of  the  several  reports,  and  there  overruled,  were  relied 
upon  here. 

1.  The  application  was  not  authorized  by  law,  having  been  made 
before  the  completion  of  the  canal. 


June  1830.]  OF  PENNSYLVANIA.  403 

[Commonwealth  ».  Fisher.] 

2.  Tho  work  on  the  several  sections  stated  in  the  petition,  was 
not  completed  when  the  application  was  made  ;  nor  had  the  said 
sections  been  taken  off  the  hands  of  the  contractors  by  the  canal 
commissioners.  The  contracts  for  making  fence  on  said  sections 
had  not  been  complied  with. 

8.  Reasonable  notice  of  the  time  and  place  of  meeting  of  the 
viewers,  was  not  given  to  the  nearest  acting  canal  commissioner. 

4.  The  viewers  did  not  ascertain  the  quantity,  or  describe  the 
boundaries,  of  the  land  by  them  valued  ;   nor  the  quality,  nor  dura- 
tion of  the  estate  and  interest  of  the  applicant  to  the  same,  agree- 
ably to  the  Act  of  Assembly. 

5.  The  damages  are  exorbitant,  and  were  assigned  without  any 
evidence  produced  before  the  viewers. 

There  was  added  in  Richter's  Case,  an  exception  to  the  allowance 
of  damages  for  injury  done  to  a  spring,  by  the  backing  of  the  water 
of  the  creek  upon  it. 

And  in  Dewart's  Case,  there  was  this  additional  exception,  "  that 
he  had  executed  a  release  to  the  Commonwealth  of  all  damage,  pre- 
viously to  his  application." 

Lashells,  for  the  Commonwealth. 

Donncl  and  Grreenough,  with  whom  was  Sterrett,  for  the  claim- 
ants. 

A  statement  of  the  whole  case,  of  the  several  Acts  of  As- 
sembly in  relation  to  it,  and  the  positions  taken  on  the  one  side  and 
the  other,  are  contained  very  fully  in  the  opinion  of  the  court,  which 
was  delivered  by 

HUSTON,  J. —  If  the  first  exception  is  sustainable,  it  will  be  un- 
necessary to  consider  the  second.  By  the  Act  of  the  2">th  Febru- 
ary 1826,  the  canal  commissioners  were  authorized  to  locate,  and 
contract  for  making  a  canal,  locks  and  other  works  necessary  thereto, 
from  the  river  Swatara,  at  or  near  Middletown,  to  or  near  to  a 
point  on  the  east  side  of  the  Susquehanna  opposite  the  mouth  of 
Juniata;  and  another  portion  from  Pittsburgh  to  Kiskiminitas. 
This  act  is  entitled  an  act  to  commence  a  canal,  to  be  constructed 
at  the  expense  of  the  state,  to  be  styled  u  Tho  Pennsylvania  ( 'anal." 
On  the  9th  April  18:27,  was  passed,  an  act  to  provide  lor  the  fur- 
ther extension  of  the  Pennsylvania  Canal.  The  first  section  pro- 
vides for  extending  one  part,  from  the  eastern  section  up  the  .luniata 
to  Lewistown  ;  another  up  Kiskiminitas  and  Conemaugh.  from  the 
western  section  of  the  Pennsylvania  Canal  to  Hlairsville  ;  and  also, 
a  canal,  locks  and  other  works  necessary  thereto,  up  the  vallev  of 
the  Susquehanna,  from  the  said  eastern  section  of  the  Pennsylvania 
Canal,  to  a  point  at  or  near  Northumberland:  to  be  selected  with 
due  regard  to  the  accommodation  of  the  trade  of  both  branches  of 
the  river.  It  is  on  this  last  the  lands  for  which  damages  are 
claimed  are  situate.  It  was  asking  a  great  deal  from  this  court. 


464  SUPREME  COURT  [Sunbury 

[Commonwealth  v.  Fisher.] 

when  we  were  required  to  believe,  that  from  Middletown  to  Juniata, 
made  the  year  before,  was  not  here  called  the  eastern  section  ;  and 
that  it  was  impossible  to  ascertain  from  the  law,  that  it  included  all 
that  part  of  the  Pennsylvania  Canal  between  the  mouth  of  Juniata 
and  Northumberland. 

The  8th  section  provides,  "that  if  any  person  shall  consider  him- 
self aggrieved  by  reason  of  the  canal  passing  through  lands  of  which 
he  is  the  owner,  or  by  interfering  in  any  manner  with  his  rights  of 
property,  he  may  at  the  completion  of  the  work  thereupon,  or  within 
one  year  thereafter,  petition  the  Court  of  Quarter  Sessions  of  the 
county  in  which  the  damage  has  been  committed,  and  the  said  court 
shall  thereupon  appoint  five  reputable  citizens  within  the  judicial 
district,  of  which  the  said  county  is  a  part,  and  not  residing  in  said 
county,  &c." 

It  was  contended  on  one  side  that  the  phrase,  "  completion  of  the 
work  thereupon,"  meant  the  completion  of  the  work  on  that  part 
of  the  canal  which  ran  through  the  land  of  the  petitioner ;  and  on 
the  other,  that  it  meant  the  completion  of  the  work  on  the  canal 
from  the  eastern  section  to  Northumberland ;  and  we  are  of  opinion, 
that  both  the  literal  meaning  of  the  words,  and  the  whole  spirit  and 
scope  of  the  act,  require  this  latter  construction.  The  viewers  are 
to  view  the  premises,  and  taking  into  consideration  the  advantages 
of  said  canal  to  the  petitioner,  report  such  damages,  if  any,  as  they 
or  any  three  of  them  shall  think  the  owner  has  sustained  by  reason 
of  said  canal ;  and  in  case  the  said  viewers  are  of  opinion,  the  said 
petitioner  has  received  no  damage,  or  that  the  advantages  derived 
from  the  canal  are  a  sufficient  compensation  to  the  petitioner  for 
any  injury  sustained  by  him,  they  will  also  report  the  same  to  the 
said  court,  &c.  Now  it  is  utterly  impossible  that  there  can  be  any 
advantage  from  an  unfinished  canal ;  it  must  be  completed  and  the 
water  in  it,  before  any  advantage  to  the  community  or  to  an  indi- 
vidual can  be  derived  from  it.  This  construction  has,  we  believe, 
been  put  upon  this  law  by  every  tribunal  before  whom  it  has  come, 
except  the  court  of  Union  county. 

But  the  petitioners  have  endeavored  to  raise  a  great  question ; 
that  the  state  could  not  take  their  lands  without  compensation  ;  and 
that  compensation  must  be  in  money,  and  must  be  paid  instantly  ; 
nay,  it  was  even  intimated  that  the  damages  ought  to  have  been 
paid  before  any  damage  was  done. 

Although  the  petitioners  and  their  counsel  have  most  carefully 
forgotten  certain  facts,  this  court  is  bound  to  remember  them,  if 
they  form  a  part  and  an  essential  arid  prominent  part  of  the  law 
of  the  land.  From  the  first  settlement  of  this  country,  both  under 
the  proprietaries  and  the  state,  the  invariable  usage  and  law  was,  in 
the  sale  of  vacant  land  to  any  applicant,  to  add  six  acres  for  every 
hundred,  for  roads,  &c.  These  six  acres  were  never  paid  for  by 
the  applicant;  they  were  not  any  particular  and  specific  or  desig- 
nated six  acres,  but  they  were  thrown  in,  that  whenever  the 


June  1830.]  OF  PENNSYLVANIA.  4Go 

[Commonwealth  ».  Finher.] 

Commonwealth  thought  a  public  road  necessary,  through  any  part 
of  the  state,  it  might  make  it  without  interfering  with  the  private 
right  of  any  individual.  The  right  of  the  state  to  take  six  acres 
out  of  every  hundred  acres  sold,  is  not  an  implied  right  hut  an 
express  reservation.  It  infringes  no  private  right  nor  does  it  injure 
any  man  by  using  this  right.  The  very  utmost  which  can  be 
required  is,  that  it  should  pay  for  improvements  put  by  the  owner 
on  the  part  afterwards  used  by  the  state. 

When  the  state  authorized  private  corporations  to  make  turn- 
pike roads  or  canals,  it  compelled  them  to  pay  for  the  land  occu- 
pied by  such  road  or  canal,  for  such  corporation  was  very  dif- 
ferent from  the  state ;  its  rights  were  very  different ;  no  reser- 
vations had  been  made  for  its  use,  no  contract  for  its  benefit.  But 
when  the  state  itself  undertook  to  make  public  canals,  its  right 
was  unquestionable.  These  petitioners,  then,  ought  to  be  grateful 
for  a  bounty  given  them  by  the  state;  to  be  thankful  rather  than 
presumptious  ;  to  acknowledge  kindness  rather  than  to  assume  the 
attitude  of  injured  persons.  If  this  were  not  so,  if  the  state  had 
no  right  to  the  six  acres  in  every  Ijundred  and  was  bound,  in  the 
strictest  manner  to  pay  for  the  part  appropriated  for  general  and 
public  use,  until  the  canal  is  completed,  it  eannot  be  known  how 
much  will  be  required  nor  whether  in  addition  to  the  pnrt  actually 
occupied,  injury  will  or  will  not  be  done  to  the  adjacent  lands,  nor 
whether  great  value  may  or  not  be  added  to  the  residue  of  the 
farm. 

There  was  a  time  and  there  is  a  case,  when  some,  in  their  over- 
weening fondness  of  new  and  undefined  power,  spoke  of  a  great 
state  and  the  government  of  a  nation,  as  lightly  as  of  the  acts 
and  authorities  and  responsibilities  of  a  petty  corporation,  of  the 
power  to  make  laws  for  the  general  welfare  and  binding  the  whole 
community,  as  no  greater  in  degree  than  the  resolves  of  a  petty 
borough.  It  was  forgotten  that  the  latter  was  restricted  by  legis- 
lative enactment  and  the  former  was  the  enacting  power,  with 
authority  unlimited,  except  in  a  few  particulars,  and  not  answer- 
able for  its  acts  except  to  those  from  whom  it  received  its  power, 
the  people.  What  the  government  conceives  is  for  the  public 
good,  it  may  do  ;  what  that  public  good  requires,  it  may  claim, 
and  how  compensation  is  to  be  made,  how  it  is^o  be  ascertained 
and  when  to  be  made,  must,  from  the  very  nature  of  tilings  be 
directed  by  that  very  government  itself.  It  may  seem  pretty  to 
talk  of  regulating  all  this  by  five  men  or  a  Court  of  Quarter  Ses- 
sions, but  although  pretty  to  talk  about  and  pleasant  to  imagine,  and 
profitable  too,  to  some,  it  is  not  to  bo  carried  farther  than  a  little 
talk  and  discussion.  If  ever  it  shall  happen  that  any  actual  in- 
jury or  injustice  is  done  to  any  citi/.en  and  his  case  is  brought 
before  this  court,  he  will  receive  mlress  to  the  extent  of  our  power. 

1  P.  &  W.— 30 


4G6  SUPREME  COURT  [Sunbury 

[Commonwealth  r.  Fisher.] 

There  is  nothing  like  that  here ;  the  whole  proceeding  is  calcu- 
lated to  prevent  the  possibility  of  injury  to  the  citizen  in  theory  ; 
and  in  practice,  has  resulted  in  injustice  to  the  community.  The 
best  thing  which  could  happen  to  a  man  was,  that  he  could  have 
some  pretext  for  putting  his  hand  into  the  treasury ;  if  he  is  de- 
layed by  having  proceeded  irregularly,  too  soon,  or  illegally,  an 
outcry  is  raised  as  though  the  country  was  invaded. 

Questions  on  constitutional  law  are  sometimes  grave  and  impor- 
tant, but  such  occur  seldom.  Occasion,  however,  is  often  taken  to 
discuss  them  as  applicable  to  matters  on  which  they  have  no  bear- 
ing, which  are  in  themselves  among  the  ordinary  subjects  of  legis- 
lation ;  in  fact,  it  is  a  standing  topic,  always  dragged  in  where 
there  is  nothing  else  to  be  said ;  and  certainly  in  this  state,  it  is  a 
ludicrous  rather  than  a  serious  objection  to  any  measure;  I  mean 
as  it  is  commonly  applied. 

The  third  objection  is  to  the  notice  to  the  canal  commissioners. 
The  act  requires  reasonable  notice ;  ten  days,  generally,  would  be 
reasonable  notice ;  but  if  several  petitioners  would  hold  views  on 
the  same  day,  no  notice  would  be  reasonable  ;  so  if  given  to  attend 
when  from  particular  occurrences  it  was  well  known  that  the  canal 
commissioners  could  not  attend. 

The  fourth  exception  is  important,  and  the  proceedings  are  in 
this  particular  totally  defective.  The  Act  of  25th  February  1826 
directed  the  damages  to  be  ascertained  by  an  inquisition,  who 
were  directed  to  ascertain  also  and  describe  the  bounds  of  the  land 
by  them  valued,  and  the  quality  and  duration  of  the  interest  and 
estate  in  the  same  required  by  the  board  of  canal  commissioners 
for  the  use  of  the  state ;  and  it  provides  that  on  payment  there- 
for, the  state  shall  be  seised  of  such  lands  as  of  an  absolute  estate 
in  perpetuity  or  of  such  less  quantity  and  duration  of  interest  or 
estate  in  the  same  or  subject  to  such  partial  or  temporary  appro- 
priation, use  or  occupation,  as  shall  be  required  and  described  as 
aforesaid  as  if  conveyed  by  the  owner  or  owners.  And  as  acts  on 
the  same  subject  are  to  be  construed  in  connection,  the  only  altera- 
tion introduced  by  the  8th  section  of  the  Act  of  IHh  April  1X27, 
as  to  this  particular  is,  that  the  five  reputable  citizens  are  substi- 
tuted for  the  inquest.  The  state  is  still  to  pay  for  the  land,  and 
it  is  still  requisite  that  it  should  appear  of  record  what  she  has  paid 
for  and  to  what  sfie  is  entitled.  The  report  must  take  its  courses 
and  distances  and  quantity  with  such  references  as  will  designate 
the  exact  property  converted  to  the  use  of  the  state.  The  title 
which  the  applicant  has  for  the  land  must  also  be  always  stated. 
To  apply  for  damages  for  injury  done  by  sections  thirty-nine  and 
forty  or  part  of  forty  is  no  description  ;  no  record  is  or  will  be  kept 
of  such  sections ;  where  each  began  and  ended  was  once  marked  by 
a  small  stake  driven  into  the  ground  as  a  direction  to  the  laborer, 
but  these  are  not  now  to  be  found  or  soon  will  disappear. 


June  1830.]  OF  PENNSYLVANIA.  4G7 

[Commonwealth  v.  Fisher.] 

That  the  damages  are  exorbitant  is  another  exception.  There 
is  no  specific  evidence  before  this  court  on  this  subject,  except 
that  lands  are  valued  at  above  $liJO  per  acre,  when  we  know  they 
seil  at  much  less  than  one-half  that  price.  The  report  is  to  be  ap- 
proved by  the  court ;  this  implies  consideration  and  judgment :  and 
although  a  court  would  not  readily  interfere  on  this  account,  yet  it 
may  become  their  duty  so  to  do.  It  would  be  a  still  stronger  ease 
which  would  justify  this  court  to  set  aside  proceedings  on  this 
ground ;  but  I  will  not  say  we  would  not  be  compelled  by  a  sense 
of  duty  so  to  do  in  some  cases.  I  am  afraid  the  viewers  have  been 
induced,  somehow  or  other,  to  put  a  wrong  construction  on  the  Act 
of  Assembly;  they  are  bound  to  take  into  view  the  advantages  of 
the  canal  to  the  petitioner  ;  now  if  he  values  his  whole  tract  of  land 
five  or  ten  dollars  per  acre  more  than  he  estimated  it  to  be  worth 
before  the  canal  was  made,  this  is  the  value  of  the  canal  to  him  ; 
and  it  is  inconceivable  how  an  honest  man  can,  on  his  oath,  say  a 
person  has  sustained  damage  by  a  canal  which  has  increased  the 
value  of  his  estate  five  or  fifteen  hundred  dollars. 

As  to  Richter's  spring,  I  do  not  know  that  we  have  facts  enough 
before  us,  from  which  to  form  a  satisfactory  opinion.  This  much 
however  may  be  said :  all  within  the  channel  of  the  river  is  a  pub- 
lic highway,  except  the  islands.  The  state,  for  the  purpose  of  im- 
proving the  natural  channel,  or  making  an  artificial  one,  may  make 
it  deeper  in  some  parts,  and  drain  or  make  shallow  other  parts  :  or 
it  may  raise  dams  partially  or  entirely  across  the  river,  and  thus 
swell  the  water,  and  this  may  constantly  or  occasionally  cover  a 
spring  rising  below  high-water  mark  ;  or  may  'deepen  the  water  at 
the  outlet  of  a  spring  above  high-water  mark,  and  thus  occasion  it 
to  be  covered  oftener  with  back  water;  all  this  it  may  do,  and  he 
who  used  the  water  of  that  spring  must  submit  to  it  as  an  evil, 
incident  like  many  other  evils,  as  well  as  advantages,  to  a  situation 
on  the  bank  of  a  large  navigable  stream.  It  is  no  uncommon  thing 
to  find  springs  between  low  and  high-water  mark,  along  the  Sus- 
quehanna,  and  such  are  often  a  matter  of  convenience  at  some  sea- 
sons of  the  year,  to  those  who  live  near;  but  the  state  never  sold 
any  land  below  high-water  mark,  and  it  is  ridiculous  to  talk  gravely 
of  a  great  national  work  being  obstructed,  because  a  man  u  ill  be 
deprived  of  the  use  of  what  was  never  his  own. 

The  additional  exception  in  the  case  of  Lewis  Pewart,  remains 
to  be  considered:  "that  he  had  executed  a  release  to  the  Common- 
wealth previously  to  the  date  of  his  petition  for  the  appointment  of 
viewers." 

That  release  was  In  these  words : 

u  Know  all  men  by  these  presents,  that  we,  the  subscribers,  for 
and  in  consideration  of  the  benefit  to  be  derived  to  us  from  the 
Pennsylvania  canal  passing  through  our  land,  or  in  the  neighborhood 


468  SUPREME  COURT 

[Commonwealth  v.  Fisher.] 

thereof,  have  agreed,  and  hereby  do  agree  with  the  Commonwealth 
of  Pennsylvania,  each  for  himself,  his  heirs  and  assigns,  that  the 
said  Commonwealth's  commissioners,  engineers,  superintendents, 
workmen,  or  others  employed  by  or  under  the  authority  of  the  Com- 
monwealth, may  freely,  and  without  charge,  enter  upon,  occupy, 
use  and  keep  so  mujh  of  our  land  as  may  be  deemed  necessary  for 
a  canal,  and  for  the  basins,  locks,  towing-paths,  embankments  and 
other  devices  whatever,  which  may  be  necessary  therefor,  and  such 
portion  of  land  on  each  side,  not  exceeding  in  width  fifty  feet,  as 
mav  be  required  or  thought  convenient ;  and  may  freely  and  with- 
out charge  enter  upon  any  part  of  our  land,  and  take  therefrom, 
for  the  use  of  the  Commonwealth,  all  such  stone,  earth,  or  other 
materials  whatever,  excepting  timber,  as  may  be  found  needful  or 
useful  in  the  construction  of  the  said  canal  and  works ;  and  we  do 
hereby  remise,  release,  and  for  ever  quit  claim  to  the  Commonwealth, 
all,  and  all  manner  of  claim  or  demand  for  damages  or  compensa- 
tion for  land  so  taken  or  occupied ;  for  stone,  earth  or  other  mate- 
rials, excepting  timber,  taken  or  used  ;  and  for  all  and  every  injury 
that  may  be  sustained,  by  reason  or  in  consequence  of  such  occu- 
pation and  taking,  or  of  entering  upon  and  taking  materials,  or 
of  excavating  our  land  for  obtaining  the  same,  or  otherwise  howso- 
ever.'' 

The  counsel  for  Mr.  Dewart  insisted  that  the  commissioners  had 
no  power  to  take  a  release.  This  must  have  been  insisted  on  before 
reading  the  6th  section  of  the  Act  of  the  10th  April  1826,  which 
expressly  directs  the  commissioners  to  call  upon,  or  direct  to  be 
called  on,  and  receive  from  all  and  every  person  or  persons,  as  far  as 
conveniently  can  be  done,  who  are  the  owners  of  land  along  or  near 
the  several  proposed  lines  of  communication  between  the  eastern 
and  western  waters,  acquittances  or  releases  from  any  claim  to  dam- 
ages, in  case  the  said  line  of  communication  shall  pass  through 
their  land,  or  for  materials  which  may  be  taken  to  carry  on  the 
work.  The  principal  objection,  however,  was  founded  on  the  as- 
sumption of  the  fact,  that  the  release  was  signed  under  the  idea 
that  a  water  communication  could  be  made  the  whole  distance  to 
Lake  Erie,  and  that  communication  would  be  through  the  lands  of 
the  signers,  and  by  the  way  of  the  west  branch  of  the  Susquehanna. 

It  may  be  admitted  that  some  persons  on  the  Juniata  once  said 
a  communication  by  water  could  be  made  on  that  route ;  that  some 
persons  on  the  west  branch  said  there  could  be  a  connected  water 
communication  by  that  route,  and  that  each  was  believed  by  those 
who  knew  nothing  of  the  route,  and  had  never  crossed  the  Allegheny 
Mountains ;  but  it  is  not  admitted  that  any  man  of  sense,  who 
knew  the  country,  and  who  was  not  blinded  by  his  interest,  ever 
said  so,  or  thought  it  practicable;  nor  did  any  engineer.  Nor  is  it 
true  that  our  Acts  of  Assembly  sanction  the  idea  that  one  canal 


June  1830.]  OF  PENNSYLVANIA.  40<J 

[Commonwealth  c.  Fisher.] 

and  only  one  was  to  be  made ;  or  that  if  a  canal  could  riot  be  made 
the  whole  distance,  none  was  to  be  undertaken.  The  first  law.  of 
llth  April  1825,  directs  examinations  to  be  made  from  Philadel- 
phia to  Pittsburgh,  by  the  way  of  the  west  branch — by  the  way  of 
Juniata,  and  from  Pittsburgh  to  Lake  Erie;  one  other  from  Phila- 
delphia to  the  northern  boundary  of  the  state  towards  Seneca  <>r 
Cayuga  lakes;  one  other  through  Cumberland  and  Franklin  coun- 
ties to  the  Potomac ;  one  other  to  the  Potomac  by  Conewago,  and 
one  to  connect  the  proposed  Chesapeake  and  Ohio  canal  with  the 
Juniata  route. 

Under  this  act,  Mitchell,  Geddis,  and  others,  had  examined  the 
head  waters  of  the  Susquehanna,  and  there  remained*  no  doubt  on 
the  subject;  it  was  certain  no  continued  water  communication  could 
be  made.  But  a  clamor  was  raised  by  those  on  the  west  branch, 
of  whom  such  conduct  might  have  been  expected,  and  some  of 
whom  it  ought  not  to  have  been  expected,  which  drove  from  the 
state  one  of  the  best  engineers  ever  in  her  employ,  and  a  man 
of  as  much  honor  as  capacity  :  I  mean  James  Geddis.  On  the 
25th  February  1820,  we  find  the  next  act.  The  people  on  the 
Juniata  had  sense  and  honesty  enough,  to  have  by  this  time  admit- 
ted there  must  be  a  portage  on  that  route :  some  few  on  the  west 
branch,  still  clamored  about  an  entire  water  communication,  and 
insisted  loudly,  that  if  a  portage  was  necessary,  it  would  be  easier 
and  shorter  by  that  route :  but  I  deny  that,  at  that  time,  one  man 
of  sense  in  the  state,  believed  in  the  practicability  of  a  water  com- 
munication, connecting  the  eastern  arid  western  waters.  The  pre- 
amble to  that  law  has  been  relied  on,  u  Whereas  the  construction 
of  a  canal  for  the  purpose  of  connecting  the  eastern  and  western 
waters,  is  believed  to  be  practicable,  "  &c.,  not  a  canal  connecting, 
but "  for  the  purpose  of  connecting:"  and  it  directs  the  part  from 
Middletown  to  the  Juniata,  and  from  Pittsburgh  to  Kiskiminitas  to 
be  begun. 

The  next  act  on  this  subject  is  that  of  the  10th  April  1820,  the 
sixth  section  of  which  I  have  before  recited,  and  which  authoiizes 
the  taking  of  releases.  Every  man  in  the  legislature,  and  every 
well  informed  man  in  the  state,  at  that  time,  knew  that  it  was  contem- 
plated to  go  to  Pittsburgh,  by  the  Juniata  route ;  and  also  to  go  up 
the  Susquehanna,  and  up  both  branches  of  it,  the  first  to  facilitate 
the  trade  with  the  western  states,  and  the  latter  for  the  benefit  »f 
our  own  citizens.  Although  the  work  on  both  branches  is  now  par- 
tially suspended,  it  is  only  suspended.  In  all  countries,  in  all  ages, 
those  who  have  improved  the  navigation  of  their  country,  or  con- 
structed canals,  have  been  considered  the  benefactors  of  their 
country,  and  their  policy  the  wisest  and  the  best.  Clamor  and 
sectional  feeling,  and  narrow  local  policy  may  interrupt  the  improve- 
ment of  the  state,  and  have  interrupted  it,  but  the  counsel  and  the 
court  have  spoken  without  authority  when  they  say  it  is  abandoned. 


470  SUPREME  COURT  [Sunbury 

[Commonwealth  v.  Fisher.] 

I  am  not  sure  it  was  not  wise  to  suspend  it  until  what  was  begun 
should  be  completed. 

There  is  nothing  more  unsafe  than  to  throw  away  the  release 
itself,  its  plain  and  obvious  meaning,  and  to  look  for  its  construction 
in  preambles  to  Acts  of  Assembly,  or  judge  of  it  from  party  squab- 
bles. It  is  made  "  in  consideration  of  the  benefit  to  be  derived  from 
the  Pennsylvania  canal  passing  through  our  lands,"  not  one  word 
about  eastern  or  western  waters,  nor  allusion  to  them,  or  the  connect- 
ing them  by  continued  water  communication,  or  portage  by  land  ; 
nor  a  word  about  the  northeastern  branch  of  the  Susquehanna. 
The  Pennsylvania  canal  does  not  pass  through  the  lands  of  the 
petitioner,  and  is  in  progress  up  each  branch  of  the  Susquehanna, 
his  release  therefore  takes  effect. 

It  is  obvious  the  petitioner  assumes  positions  somewhat  inconsis- 
tent with  each  other  ;  first,  he  says  he  must  be  paid  before  the  whole 
canal  is  completed  ;  nay,  before  that  section  is  completed  which 
passes  through  his  lands  ;  and  next  he  says,  his  release  is  not  to  bind 
him,  because  the  canal  is  not  completed,  and  no  appropriation  for 
putting  any  more  of  it  under  contract  this  year ;  in  every  way  he 
asks  to  gain. 

We  are  of  opinion  that  this  release  is  too  plain  to  admit  of  doubt 
and  for  ever  estops  the  applicant  from  demanding  from  the  state, 
what  has  solemnly  been  released  to  it.  But  it  is  said,  that  he  did 
not  own  all  the  lands,  for  which  the  viewers  have  given  damages, 
at  the  time  he  executed  the  release.  The  record,  however,  exhibits 
nothing  on  this  subject :  it  is  true  his  counsel  have  offered  to  us  a 
deed  for  part  of  the  lands,  dated  in  1827,  a  year  after  the  release. 
This  is  not  regularly  before  us,  nor,  if  it  was,  is  it  quite  conclusive 
that  he  did  not  own  the  land  in  fact,  a  year  before  he  got  his  deed. 
Something  has  also  been  said  about  his  owning  another  tract  in  the 
neighborhood,  which  he  gave  in  exchange  for  this :  how  far,  or 
whether  in  any  way,  a  man  who  has  released  can  get  clear  of  the 
effect  thereof  by  exchanges  of  property,  is  not  before  us  ;  and  we 
say  nothing  of  its  effect.  Some  of  the  land  he  owned  when  the 
release  was  executed  ;  it  is  all  valued  together.  The  objections  to 
the  proceedings  in  the  other  cases,  particularly  the  defect  of  desig- 
nation in  the  report  of  viewers,  apply  to  this. 

Proceedings  in  all  the  cases  reversed. 

Overruled  in  part  by  Commonwealth  r.  McAllister  et  al.*  '2  W.  I'.M). 

Referred  to,  6  Wh.  44,  40  ;  7  C.  43  ;  «J  C.181  ;  11  Wr.  332 ;  10  Smith  343. 

Probably  referred  to,  G  W.  &  S.  115,  and  commented  on  117,  US. 

Commented  on,  8  Hurr  453. 

Affirmed,  16  Smith  45  ;  31  Id.  86,  s.  c.  2  W.  N.  C.  716. 

Followed,  1  W.  48.  353  ;  7  Phila.  641 ;  31  Smith  174  ;  s.  c.  3  W.  N.  C.  226. 


June  1830.]  OF  PENNSYLVANIA.  471 


Smith  against  Johnston. 

By  a  sale,  conveyance  and  delivery  of  possession  of  land,  the  grain  grow- 
ing thereon  does  not  pass  to  the  vendee. 

WRIT  of  error  to  the  Common  Pleas  of  Columbia  county,  where 
it  was  an  action  of  trover,  brought  by  Michael  Smith  against  James 
Johnston. 

The  case  was  this  :  Charles  Clark  being  the  owner  of  a  farm,  had 
leased  it  to  Michael  Smith,  the  plaintiff  in  error,  who  was  also  the 
plaintiff  below,  for  one  year,  which  was  to  end  on  the  1st  April  lN:i8. 
The  terms  of  the  lease  were,  that  the  tenant  was  to  deliver  a  certain 
portion  of  the  grain  to  the  landlord,  in  the  bushel.  In  the  month 
of  February  18-8,  Clark  sold  the  farm  to  Johnston,  the  defendant, 
and  conveyed  it  to  him  by  deed  in  common  form.  Johnston  went 
into  possession  on  the  1st  April  18:28. 

The  question  of  law  which  arose  in  the  case  was,  whether  Johnston, 
the  purchaser,  was  entitled  to  the  landlord's  share  of  the  grain  in  the 
ground,  which  was  reaped  in  the  harvest  of  18:28. 

The  court  below  was  of  opinion,  that  the  deed  from  Clark  to  John- 
ston, conveying  the  farm,  "  and  the  rents,  issues  and  profits  thereof," 
vested  the  right  to  the  landlord's  share  in  the  purchaser  of  the  land, 
and  the  jury  found  accordingly. 

Friclc,  for  plaintiff  in  error,  contended  that  grain  growing  in  the 
ground  is  personal  property,  and  will  not  pass  by  a  conveyance  of 
the  land  :  Toll.  Law  of  Ex.  149.  By  the  Act  of  Assembly,  a  sher- 
iff's deed  conveys  real  estate  as  fully  as  the  defendant  could  convey 
it ;  and  it  was  held  in  Myers  v.  White,  1  Itawle  ^.">fj,  that  a  sale  bv 
the  sheriff  of  land,  upon  a  levari  facias  on  a  mortgage,  did  not  pass 
the  grain  growing  thereon. 

The  right  to  the  grain  was  a  personal  right,  which  accrued  to  the 
landlord  the  moment  the  grain  was  sown. 

Cr/vVr,  for  defendant  in  error. — The  conveyance  of  the  land,  and 
the  rents,  issues  and  profits  thereof,  is  a  conveyance  of  everything 
growing  upon  the  land  :  Foote  v.  Colvin,  8  Johns.  11.  '2'2'2. 

The  opinion  of  the  court  was  delivered  by 

UIHSON,  C.  J. — It  is  a  little  remarkable  that  the  precise  point  in 
this  case  has  not  been  decided  in  England  or  this  country.  The 
reason  mav  be,  that  the  subject  is  usually  disposed  of  by  some  pre- 
liminary stipulation.  There  is,  indeed,  a  dictum  of  Mr.  Ju-tiec 
Spencer,  in  delivering  the  opinion  of  the  court,  in  Foote  r  <'.>lv;n, 
8  Johns.  '2'2'2,  that  a  sale  of  the  land  simply,  by  the  owner  of  both 
the  land  and  the  crop,  carries  the  crop  to  the  purchaser;  which, 
with  great  respect  for  the  opinions  of  that  learned  judge,  seeni^  to 
be  unsupported  by  decision  or  analogy.  Mr.  l\.>l>eits  is  the  only 
elementary  writer  who  asserts  that  the  products  of  the  soil,  whether 


472  SUPREME  COURT  [Suntwry 

[Smith  v.  Johnston.] 

spontaneous  or  cultivated,  accompany  the  freehold  until  they  are 
actually  severed,  unless  when  sold  in   prospect  of  such  severance ; 
and  the  cases  referred  to  in  the  margin  of  the  books,  Roberts  on 
Frauds  126,  certainly  does  not  prove  that  corn  growing  is  as  much 
a  part  of  the  freehold  as  grass  or  timber  trees ;  or  that  it  is  part  of 
the  freehold  at  all.     On  the  contrary  all  the  authorities  agree,  that 
as  against  the  heir,  it  goes  to  the  executor,  though  it  seems  to  be 
settled  that  it  passes  by  a  devise  of  the  land,  and.  in  conformity  to 
authority,  it  was  so  determined  by  this  court,  in  McCullough's  Ap- 
peal, 4  Yeates  23.     The  reason  for  this  distinction,  attempted  in 
Gilbert's  Evidence,  350,  is  that  "every  man's  donation  being  taken 
most  strongly  against  himself,  shall  pass  not  only  the  land  itself  but 
the  chattels  which  belong  to  the  land ;  but  no  chattels  can  descend 
to  the  heir  ;  they  go  the  executor.     Why  this  is  accounted  a  chattel, 
we  have  shown  already."     And  in  doing  so,  he  had  just  given  a  few 
quaint,  but  substantial  reasons  why  corn  growing  does  not  belong  to 
the  land.     "  It  follows,"  the  chief  baron  had  said,  "  that  there  ought 
to  be  another  property  in  the  corn,  distinct  from  the  land,  inasmuch 
as  there  is  labor  in  acquiring  and  sowing  the  corn  distinct  from  the 
labor  whereby  the  land  was  at  first  occupied  and  gotten  ;  also,  there 
is  a  distinct  charge  in  sowing  the  corn  ftom  the  money  whereby  the 
land  was  purchased.     The  law,  following  nature,  doth  erect  a  dis- 
tinct property  in  the  corn,  different  from  the  land."     And  again, 
"  there  is  a  property  in  the  corn,  distinct  from  the  soil,  before  the 
corn  is  committed  to  the  earth,  and  that  property  is  not  lost  by  sow- 
ing in  a  man's  own  soil ;  for  I  cannot  lose  the  property  of  what  is 
my  own,  by  putting  it  in  a  place  which  is  also  :ny  own.     But  if  I 
sow  my  corn  in  another  man's  soil,  it  ceases  to  be  mine.     Still  fur- 
ther :  "  Because  a  man  expects  a  yearly  return  of  the  corn  he  sows, 
it  is  reckoned  part  of  his  personal  estate,  as  the  corn  was  before  it 
was  sown.     But  otherwise  of  timber  trees  planted,  for  they  must  be 
supposed  to  be  annexed  to  the  soil,  since  they  were  planted,  with 
the  prospect  that  they  could  not  come  to  their  full  use  and  perfec- 
tion, till  many  generations  afterwards."     Thus  far  Chief  Baron  Gil- 
bert, who  gives  good  reasons  why  the  growing  crop  should  be  con- 
sidered a  chattel,  in  contradistinction  to  timber  trees  ;  and  satisfac- 
torily exposes  the  foundation  of  the  rule  by  which  a  tenant  having 
attempted  to  retain  the  ownership  of  the  land  after  the  expiration 
of  his  estate  by  sowing  it  out  of  season,  loses  the  crop,  as  in  the  case 
of  an  adverse  recovery  ;  but  who,  in  the  opinion  of  Mr.  JIargrave, 
is  less  happy  in  accounting  for  the  distinction  which  gives  corn  grow- 
ing to  a  devisee,  but  denies  it  to  the  heir :  Co.  Litt.  55,  b.  note  2. 
The  truth  is,  the  distinction  rests  altogether  on  authority,  but  au- 
thority so  unquestionable  as  not  to  be  shaken.     Even  in  point  of 
reason,  however,  a  further  distinction   might  be  taken  between   a 
will,  in  the  construction  of  which  a  presumption  of  intention  may 
be  raised  from  circumstances,  and  a  deed  of  which  the  construction 
is  to  be  made  from  the  technical  effect  of  the  words.    Now  in  Poole's 


June  1830.]  OF  PENNSYLVANIA.  473 

[Smith  v.  Johnston.] 

Case,  1  Salk.  368,  corn  growing  is  said  without  qualification  to  be 
a  chattel ;  and  the  same  thing  is  asserted  in  Whipple  v.  Foote,  3 
Johns.  452  ;  Newcomb  v.  Ranier,  Id.  in  note,  arid  Stewart  v.  Dough- 
erty, 9  Johns.  108,  as  well  as  by  Chief  Baron  Gilbert  in  the  passage** 
just  quoted.  As  a  chattel,  then,  there  is  no  reason  why  it  should 
pass  by  a  bargain  and  sale  of  the  land,  which  would  not  be  equally 
applicable  to  cattle  depastured  on  the  land.  But  whatever  may  be 
the  law  in  England  or  our  sister  states,  it  is  clearly  settled  by  usage 
and  judicial  decision  here,  that,  except  by  devise,  the  crop  docs  not 
pass  as  parcel  of  the  land.  The  practice  of  reserving  the  crop  has, 
I  believe,  been  universal ;  insomuch  that  when  the  reservation  is 
not  expressly  declared,  it  is  nevertheless  a  tacit  condition  of  the  con- 
tract. In  the  very  case  at  bar,  it  appears  from  the  evidence  sent 
up,  that  the  vendee  had  no  thought  of  claiming  the  crop,  till  it  was 
suggested  by  a  neighbor.  In  accordance  with  the  popular  notion, 
grain  in  the  ground  was  treated  as  a  chattel,  in  Welsh  ?•.  Becky,  1 
P.  &  W.  57,  and  subjected  to  the  rule  which  requires  an  actual  or 
symbolical  delivery  in  the  case  of  a  conditional  sale.  Still  nearer  to 
the  point  is  Myers  v.  White,  1  Rawle  353,  in  which  it  was  deter- 
mined that  the  sheriff  may  not  sell  grain  in  the  ground,  by  virtue 
of  a  levari  facias  on  a  mortgage  ;  and  in  Stambaugh  r.  Ycates,1 
MSS.  Charnbersburg,  1828,  it  was  held  that,  although  it  may  be 
sold  as  personal  property  on  a  fi.  fa.,  it  docs  not  pass  by  a  levy 
and  sale  of  the  land  on  a  venditioni  exponas.  According  then  to 
an  incontestible  principle  asserted  in  Foote  v.  Colvin,  that  a  sale 
on  an  execution  passes  whatever  the  debtor  might  pass  by  a  volun- 
tary conveyance,  the  preceding  case  is  substantially  in  point.  If 
the  crop  be  an  accessary  of  the  land,  it  will  follow  its  principal  as 
readily  by  the  one  conveyance  as  the  other  ;  if  it  be  not,  I  know  not 
how  it  is  to  pass  by  words  inapplicable  to  it  in  either.  It  seems, 
therefore,  the  judge  who  tried  the  cause,  erred  in  directing  the  jury, 
that  in  the  absence  of  an  actual  reservation  the  crop  would  go  to 
the  vendee. 

Judgment  reversed,  and  a  venire*  de  novo  awarded. 

1  Stambauph  v.  Ycates,  2  R.  161. 

Overruled,  7  W.  379,  and  see  9  W.  47  ;  5  C.  68. 

Commented  on  3  P.  &  VV.  501,  502.  In  Cobol  r.  Cobel,  8  Barr  P>4r..  John- 
ston v.  Smith  3  P.  &  W.  496,  is  referred  to  us  overruled  ;  the  principal  oa«> 
is  probably  the  one  intended. 


474  SUPREME  COURT  [Sunbury 


Chew's  Ex'rx  against  Mather's  Adm'r. 

B.  C.  sells,  by  articles  of  agreement  to  J.  M.  a  tract  of  land,  for  which 
he  is  to  execute  a  conveyance  upon  the  payment  of  the  purchase-money,  for 
which  he  takes  a  judgment-bond  from  J.  M.  Subsequently,  B.  0.  enters  the 
judgment-bond,  issues  a  fi.  fa.,  levies  upon  the  land,  which  is  afterwards 
sold  by  the  sheriff,  and  B.  0.  becomes  the  purchaser  fur  a  sum  less  than  one- 
half  of  the  judgment.  Held,  that  such  sale  and  purchase  is  an  equitable 
extinguishment  of  the  whole  amount  of  the  judgment. 

ERROR  to  the  Court  of  Common  Pleas  of  Columbia  county. 

This  was  a  scire  facias  to  revive  a  judgment,  to  which  the  defend- 
ant plead  payment,  with  leave  to  give  the  special  matter  in  evi- 
dence. 

The  defendant,  to  support  the  issue  on  his  part  proved  that  the 
consideration  of  the  original  judgment-hond,  was  a  tract  of  land, 
sold  by  the  executors  of  Benjamin  Chew,  deceased,  to  the  defendant 
in  1818,  by  articles  of  agreement,  by  which  it  was  stipulated  tfcat 
Mathers  was  not  to  get  a  deed  for  the  land  until  the  purchase-money 
was  paid ;  that  in  1821,  a  fi.  fa.  was  issued  upon  that  judgment, 
which  was  levied  upon  the  land  so  sold  by  the  plaintiff  to  the  de- 
fendant ;  that  in  1823,  a  venditioni  exponas  was  issued,  upon  which 
the  property  was  advertised  for  sale  by  the  sheriff;  that  while  the 
crier  was  offering  the  property  for  sale,  the  plaintiff's  attorney  was 
inquired  of  what  kind  of  title  the  purchaser  would  get,  whether  the 
executors  of  Benjamin  Chew,  deceased,  would  make  a  deed  to  the 
purchaser  ?  To  which  he  answered,  that  the  purchaser  would  get 
the  title  of  the  defendant,  Mathers,  subject  to  the  payment  of  the 
purchase-money.  The  persons  who  made  the  inquiry  then  refused 
to  bid,  and  the  property  was  struck  down  to  the  plaintiff's  attorney, 
for  3'JoO,  and  a  deed  was  subsequently  made  arid  acknowledged  to 
the  plaintiff. 

The  plaintiff  claimed  to  recover  in  this  suit  the  amount  of  the 
original  judgment,  after  allowing  a  credit  of  the  $950,  for  which 
Mathers'  title  sold  by  the  sheriff.  But  at  all  events  he  claimed  to 
be  entitled  to  recover  the  amount,  after  allowing  the  defendant  a 
credit  for  the  real  value  of  the  land  at  that  time,  to  be  estimated  by 
the  jury. 

The  court  below  (Chapman,  president),  was  of  opinion,  and  so 
instructed  the  jury,  that  if  they  believed  the  land  was  sold  subject  to 
the  payment  of  the  purchase-money,  on  the  original  contract  between 
Chew  and  Mathers,  and  bought  in  by  the  plaintiff,  that  it  was  an 
extinguishment  of  the  whole  judgment,  and  the  plaintiff  could  not 
recover.  The  jury  found  for  the  defendant. 

The  opinion  of  the  court  was  assigned  as  error. 


June  1830.]  OF  PENNSYLVANIA.  47o 

[Chew's  Ex'r.  v.  Mathers'a  Adrn'r.] 

Grier,  for  plaintiff  in  error. — The  facts  of  this  case  do  not 
create  a  letjal  extinguishment  of  the  debt ;  and  equity  will  not  inter- 
fere to  protect  the  defendant  against  a  compliance  with  his  contract 
to  pay  the  money  claimed.  Chew,  holding  the  legal  title  to  the  land. 
stood,  in  relation  to  his  vendee,  in  the  nature  of  a  mortgagor ;  he 
might  either  pursue  the  land  hy  an  ejectment  to  compel  the  payim-nt 
of  the  purchase-money,  or  he  might  pursue  his  personal  remedy  upon 
the  judgment-bond;  he  elects  to  pursue  the  latter  course  hy  issuing 
a  fi.  fa.,  upon  which  the  sheriff  might  have  levied  upon  the  defend- 
ant's personal  property,  or  upon  other  land  of  the  defendant  than 
that  sold  to  him  by  the  plaintiff;  the  sale  of  either  of  which  would 
not  have  been  an  extinguishment  of  the  judgment  to  an  amount 
greater  than  the  proceeds  ;  but  because  it  so  happened  that  this  land 
was  levied  and  sold  first,  the  whole  amount  of  the  judgment  is  to  be 
extinguished. 

The  sale  would  have  passed  the  whole  estate  to  the  purchaser : 
Ligget  v.  Edwards,  Hopkins 's  Chan.  Rep.  530;  and  the  opinion 
given  by  the  attorney  of  the  plaintiff,  in  the  execution  upon  which 
it  was  selling,  would  not  alter  the  legal  effect  of  such  sale.  It  was 
but  an  opinion,  and  not  imposed  as  terms  of  sale.  But  if  by  this 
opinion  the  defendant  was  prejudiced,  we  offered  on  the  trial  to  rem- 
edy it  by  allowing  him  a  credit  for  the  then  value  of  the  land. 

Frick,  for  defendant  in  error,  whom  the  court  declined  to  hear. 

The  opinion  of  the  court  was  delivered  by 

,  GIBSON,  C.  J. — In  England,  a  legal  estate  cannot  be  sold,  nor  an 
equitable  one  levied,  on  an  execution ;  so  that  the  rights  which 
spring  from  judicial  sales  of  equitable  estates  here,  are  necessarily 
peculiar  to  ourselves.  In  Purviance  v.  Lemon,  16  8.  &  K.  2!>2,  the 
nature  of  these  rights  was  considered  as  between  the  original  vendor 
and  vendee,  and  a  principle  established,  which  covers  the  ground  of 
the  present  controversy,  that  a  destruction  of  the  relation  of  trustee 
and  cestui  quo  trust,  by  re-uniting  the  equitable  to  the  legal  estate, 
is  virtually  a  rescission  of  the  contract.  The  vendor  is  a  trustee  to 
the  extent  of  the  payments  of  the  vendee,  who,  by  tendering  the 
whole  purchase-money,  entitles  himself  to  a  conveyance.  \\  hat 
would  be  the  relation  of  the  parties  here,  were  the  vendor,  after  hav- 
ing extinguished  the  vendee's  estate  by  getting  it  in  at  the  sheriff's 
sale,  to  enforce  his  judgment  for  the  residue  of  the  purchase-money  ? 
It  will  be  admitted  that  he  could  not  keep  the  estate  and  compel  the 
vendee  to  pay  for  it ;  he  entertains  no  such  views.  Hut  having  re- 
ceived the  whole  purchase-money,  would  he  be  bound  to  convey  the 
whole  estate  under  the  original  contract,  or  only  the  portion  of  it 
for  which  the  vendee  had  newlv  paid  ?  If  the  former,  then  the  sher- 
iff's sale  must  have  left  the  rights  and  interests  of  the  parties  pre- 
cisely as  it  found  them  ;  and  in  that  view,  the  vendee  might,  by 


•176  SUPREME  COURT  [Sunlury 

[Chew's  Ex'r.  v.  Mathers's  Adm'r.] 

paying  the  last  shilling,  entitle  him  to  the  estate,  in  defiance  of  a 
judicial  sale  of  his  interest.  That  would  be  monstrous.  Yet  the 
rights  and  the  remedies  of  the  parties,  must  necessarily  be  recip- 
rocal ;  and  if  the  vendee  may  not  treat  the  purchase  as  still  subsist- 
ing, neither  can  the  vendor.  But  the  residue  of  the  price  can  be 
demanded  only  on  the  foot  of  the  contract,  for  the  performance  of 
which  the 'bond  is  but  a  security,  and  the  judgment  an  instrument. 
The  vendor,  therefore,  would  not  be  bound  to  convey  the  whole 
estate,  but  would  by  consequence  be  considered  as  having  perma- 
nently regained  at  least  a  part  of  it.  That  would,  however,  intro- 
duce a  relation  of  the  parties  not  contemplated  by  the  original  con- 
tract; and  besides,  bring  the  case  exactly  to  the  circumstances  of 
Purviance  v.  Lemon,  except  that  the  chain  of  transmission  from  the 
vendor  to  the  vendee,  and  back  again  to  the  vendor,  had  in  that  case 
an  additional  link.  In  every  view,  then,  it  seems  that  the  extin- 
guishment of  the  vendee's  estate  by  a  re-conveyance,  was  a  disaffirm- 
ance  of  the  contract,  and  an  equitable  payment  of  the  judgment. 

Judgment  affirmed. 

Referred  to,  10  W.  436. 

Distinguished,  4  W.  408. 

Doctrine  discussed.  Bradley  c.  O'Donnell  et  al.,  8  C.  279. 

Followed,  5  W.  417 ;  8  W.  &  S.  183 ;  7  Wr.  455. 


Decker  against  Eisenhauer  et  al. 

If  the  payer  of  a  note  stands  by  and  sees  it  assigned  to  a  third  person, 
without  giving  the  assignee  notice  of  an  existing  defence,  he  shall  afterwards 
pay  the  amount  of  the  note  to  the  assignee,  although  the  consideration 
thereof  should  have  entirely  failed  ;  and  whether  his  conduct  proceeded  from 
ignorance  or  design. 

Tins  was  an  appeal  from  the  Circuit  Court  of  Union  county,  held 
by  Justice  Huston. 

The  case  is  fully  stated  in  the  opinion  of  the  court. 

Greenough,  for  appellant,  to  sustain  the  position,  that  an 
obligor,  who  stands  by  and  sees  his  bond  assigned  to  a  third  person, 
cannot  afterwards  avail  himself  of  any  defence,  which  then  existed, 
cited,  Gordon  v.  N.  Amer.  Ins.  Co.,  1  Binn.  434 ;  5  Wils.  Bac. 
Abr.  47-49  ;  3  Id.  301 ;  Salmon  v.  Ranee,  3  S.  &  R.  311. 

LascheUs,  contra,  insisted  that  no  reported  case  sustained  the 
position  that  a  man's  silence  would  make  him  liable  when  otherwise 
he  would  not  be.  It  was  the  duty  of  the  assignee  to  ask  the  obli- 
gors, if  they  had  a  defence.  Cited,  Elliott  v.  Callan,  ante,  p.  24; 
Davis  v.  Barr,  9  S.  &  R.  137  ;  McMullen  v.  Wenner,  16  Id.  18. 


Jane  1830.]  OF  PENNSYLVANIA.  477 

[Decker  v.  Eisenhauer.] 

The  opinion  of  the  court  was  delivered  by 

SMITH,  J. — This  is  an  appeal  from  the  Circuit  Court,  held  by 
Justice  Huston,  for  the  county  of  Union  in  April  last.  The  appel- 
lant moves  this  court  for  a  new  trial,  on  the  ground  that  the  verdict 
is  against  the  weight  of  evidence  in  the  cause,  and  the  law  arising 
from  it.  In  order  that  the  case  and  the  decision  of  the  court  may 
be  understood,  it  may  be  necessary  to  state  somewhat  minutely  the 
prominent  facts  in  the  cause,  as  they  appeared  in  evidence. 

Peter  Decker,  about  the  beginning  of  April  1818,  purchased  from 
Frederick  Stees,  a  farm  near  Middle  creek,  in  Union  county,  ad- 
joining lands  of  Henry  Bolander  and  others.  This  farm  consisted 
of  several  pieces  or  tracts  of  land,  all  adjoining  and  making  but  one 
plantation. 

On  the  2Gd  of  April  1818,  Peter  Decker  mortgaged  this  land  to 
Frederick  Stees,  to  secure  a  part  of  the  original  purchase- money. 
On  the  14th  of  June  1819,  he  sold  and  conveyed  to  Abraham  Eisen- 
haucr,  a  son-in-law  of  Henry  Bolander,  twenty-seven  acres  and  one 
hundred  and  fourteen  perches  of  the  land  covered  by  the  mortgage, 
for  the  consideration  of  $1077. 73,  a  small  part  of  which,  to  wit, 
about  $130  was  paid  in  cash.  For  the  residue,  upwards  of  $000, 
Eisenhauer  gave  nine  single  bills,  the  subject  of  this  suit,  with 
Henry  Bolander  as  security.  Abraham  Eisenhauer  took  posses- 
sion of  his  purchase,  and  remained  thereon  until  sometime  in  1829, 
when  the  mortgage  was  put  in  suit,  judgment  recovered,  and  the 
said  twenty-seven  acres  and  one  hundred  and  fourteen  perches  were 
sold  to  Barbara  Mourer,  a  daughter  of  Henry  Bolander,  for  $490. 

Sometime  before  the  1st  of  July  1820  (the  precise  time  does  not 
appear  from  the  evidence),  John  Frytcnbcrger  went  to  live  with  Peter 
Decker,  and  loaned  him  300£.  He  did  not  remain  long  with  Decker, 
but  being  dissatisfied  went  to  Henry  Bolander 's,  and  while  he  was 
living  there,  Eisenhauer  and  Bolanderjboth  told  him  there  was  a 
mortgage  against  Decker.  Peter  Decker  swears  (and  he  is  not  con- 
tradicted), that  Eisenhauer  knew  of  the  mortgage  to  Stees,  when 
he  purchased  the  twenty-seven  acres  and  one  hundred  and  fourteen 
perches,  and  in  consequence  of  it,  insisted  upon  having  a  good  and 
sufficient  bond  of  indemnity;  that  a  bond  of  indemnity  was  accord- 
ingly executed  and  left  with  the  deed ;  that  Eisenhauer  was  not 
satisfied  with  the  bond  because  bail  was  not  in  it.  but  took  it  to- 
gether with  the  deed,  gave  his  bills  as  above  mentioned,  and  about 
six  years  afterwards  said  he  had  burnt  the  bond  of  indemnity. 

On  the  1st  of  July  1820,  Decker,  Frytenberger,  Eisenhauer  and 
Bolander,  met  together,  when  Decker  assigned  the  single  bills  in 
question,  to  Frytenberger,  in  part  satisfaction  of  the  300/.,  which 
he  had  borrowed  of  him.  Henry  Bolander  wrote  three  of  the  as- 
signments himself;  at  this  time  or  before,  neither  Bolander  nor 
Eisenhauer  intimated  that  they  had  any  grounds  of  defence:  and 
Frytenberger  on  being  asked  by  Decker,  why  he  pressed  him  so, 


478  SUPREME  COURT 

[Decker  v.  Eisenhauer.] 

answered  that  it  was  because  Eisenhauer  and  Bolander  said  there 
was  a  mortgage  against  him.  There  was  no  evidence  whatever  that 
Frytenberger  knew  or  had  heard  that  the  twenty-seven  acres  .sold 
to  Eisenhauer  were  encumbered,  or  that  the  single  bills  in  question 
were  given  for  that  land. 

The  obligor  cannot  be  compelled  to  pay  a  bond  or  single  bill, 
given  on  the  purchase  of  land,  the  title  to  which  proves  to  be  bad ; 
although  the  assignee  is  in  no  better  condition  in  general  than  the 
obligee,  yet  if  the  obligor  has  promoted  and  encouraged  the  assign- 
ment, the  case  is  different.  This  distinction  was  fully  recognised 
by  the  learned  judge  before  whom  the  cause  was  tried,  but  it  would 
appear  that  it  was  not  regarded  by  the  jury.  It  therefore  becomes 
necessary,  in  order  to  prevent  injustice,  to  set  aside  their  verdict 
and  grant  another  trial.  The  defendants  say,  they  ought  not  to  pay 
the  single  bills,  because  they  were  given  for  the  purchase-money  of 
land,  encumbered  by  a  mortgage  for  which  it  was  eventually  sold. 
The  appellant,  however,  replies  that  although  this  would  have 
availed  you  as  respects  Decker;  yet  as  you  stood  by  and  saw  him 
assign  these  bills  to  me  for  a  valuable  consideration,  without  inform- 
ing me  of  the  defect  of  title,  as  you,  on  the  contrary,  carefully  con- 
cealed it  from  me  and  assisted  in  preparing  the  assignments,  your 
defence  in  the  present  action  is  inequitable  and  unjust.  In  Rudy 
and  Wife  v.  Wenner,  16  S.  &  R.  21,  Justice  Rogers,  in  delivering 
the  opinion  of  this  court,  says,  that  if,  before  the  assignment,  the 
assignee  calls  on  the  obligor  and  informs  him  that  he  is  about  to 
take  an  assignment  of  his  bond  and  the  obligor  acknowledges  it  is 
due  without  any  allegation  of  defence,  he  shall  not  be  permitted  to 
take  defence  against  the  assignee  ;  and  this  whether  his  silence  pro- 
ceeds from  ignorance  or  design.  The  present  Chief  Justice,  in 
Davis  v.  Barr,  9  S.  &  R.  141,  says,  "  that  to  exclude  all  transac- 
tions between  the  original  parties  it  is  necessary  that  it  should  ap- 
pear the  assignee  took  the  assignment  at  the  instance  of  the  obligor 
or  ut  least  that  the  latter  stood  by  with  full  knowledge  of  his  rights 
and  without  disclosing  them.  Now  in  this  case,  we  find  that  both 
Bolander  and  the  other  defendant,  Eisenhauer,  whilst  Frytenberger 
lived  with  the  former,  knew  of  the  encumbrance ;  Decker  swears, 
that  when  he  sold  the  twenty  seven  acres,  Eisenhauer  knew  of  the 
mortgage  to  Stees  and  for  that  reason,  insisted  on  having  a  good 
and  sufficient  bond  of  indemnity,  although  to  an  entire  stranger  it 
might  appear  uncertain,  from  the  face  of  the  mortgage  as  written, 
whether  the  land  sold  was  included  in  it,  and  it  iff  said  without  the 
aid  of  a  draft  it  cannot  be  ascertained,  yet  it  seems  to  us,  that 
Eisenhauer  at  least,  if  not  Bolander,  must  have  been  acquainted  with 
the  extent  of  the  mortgage.  This  farm  belonged  to  Frederick  Stees, 
who  had  long  resided  in  that  neighborhood ;  it  adjoined  Henry  Bo- 
lander's  farm  who  had  also  resided  there  a  long  time.  Decker 
bought  in  1818,  and  sold  to  Eisenhauer  in  1819;  and  as  it  was 


June  1830.]  OF  PENNSYLVANIA.  479 

[Decker  v.  Eisenhaucr.] 

a  cash  sale,  it  is  reasonable  to  suppose  both  Eisenhaucr  and  bis 
father-in-law  wouli  make  inquiry,  either  of  Mr.  IS  tees  or  at  the 
recorder's  office,  respecting  the  title,  before  they  purchased,  to  nay 
the  least  of  it,  they  had  every  motive  and  opportunity  to  inform 
themselves;  and  Decker  swears  positively  that  he  told  Eisenhaucr 
of  the  mortgage,  who  in  consequence  of  it  required  a  bond  of  indem- 
nity. With  this  knowledge,  they,  Decker  and  Frytenberger,  on 
the  1st  of  July  1820,  met  together  and  Decker  assigned  the  single 
bills  to  Frytenberger,  in  part  satisfaction  or  the  300/.  During  the 
whole  transaction,  not  a  whisper  is  heard  or  hinted  as  to  a  defence, 
and  the  mortgage,  though  well  known  to  one,  if  not  to  both  of  the 
defendants,  was  never  mentioned ;  good  faith  to  Frytenberger  re- 
quired them  to  speak  out  at  this  time  ;  instead  of  which,  they  are 
not  only  silent,  but  by  their  conduct  actually  promote  the  transfers. 
Under  such  circumstances,  this  court  is  constrained  to  say,  as  it  did 
in  the  case  of  Stannard  v.  Callan,  1  P.  &  W.  31,  that  the  conduct 
of  the  obligors,  whether  it  proceeded  from  ignorance  or  design,  must 
bar  them  from  setting  up  a  defence,  with  any  hope  of  success,  against 
Frytenberger,  the  equitable  assignee.  I  am  of  the  opinion,  that  by 
their  silence,  when  they  ought  to  have  spoken,  and  by  their  whole 
conduct  when  assembled  on  the  1st  of  July  1820,  they  promoted 
and  induced  the  assignment,  and  cannot  now,  injustice  and  reason, 
refuse  to  pay  the  single  bills.  Under  all  the  circumstances,  we  are 
of  the  opinion,  the  cause  ought  to  be  reheard ;  and  therefore  set 
aside  the  verdict,  by  reversing  the  judgment,  and  granting  a  new 
trial. 

HUSTON,  J. — It  often  happens  that  judges  differ  in  opinion  as  to 
a  particular  case,  much  oftener  than  on  general  principles.  The 
court  in  granting  new  trials,  ought  to  be  very  careful  in  their  state- 
ment of  facts,  for  it  is  read  to  the  jury,  and  by  them,  too  often,  con- 
sidered as  evidence  of  such  facts.  I  say  this,  because  in  the  state- 
ment of  the  facts  of  this  case  by  the  judge,  there  is  much  which  was 
not  proved  so  strongly  as  here  stated  ;  some  things  not  proved  at  all, 
and  it  is  said  a  point  was  not  contradicted,  which  was  the  turning 
point  in  the  cause,  and  which,  certainly,  the  jury  found  to  be  differ- 
ent from  what  is  here  assumed.  The  cause  turned  on  whether 
Ilochenbury  or  Decker  was  to  be  believed  ;  or  whether  Inlander 
knew  of  the  mortgage,  when  the  bonds  were  assigned :  and  the  cause 
was  left  to  the  jury  on  those  facts.  I  heard  the  testimony,  observed 
the  witnesses,  their  manner,  and  considered  their  situation  and  inter- 
est, and  I  was  perfectly  satisfied  with  the  verdict,  and  that  it  was 
not  contrary  to  the  evidence  given  ;  though  it  might  be  wrong,  if 
statements  of  counsel  were  any  evidence  at  all. 

New  trial  granted. 


480  SUPREME  COURT 


Willard  et  al.  against  Morris. 

A  sale  of  real  estate  by  the  sheriff,  upon  a  junior  judgment,  divests  the  lien 
of  a  prior  mortgage  upon  the  same  land. 

A  trial  upon  the  plea  of  payment,  is  not  a  waiver  by  the  defendant  of  a 
joinder  in  demurrer  to  another  plea  put  in  by  him;  thus  when  there  is  a 
joinder  in  demurrer,  and  the  defendant  is  legally  entitled  to  a  judgment 
thereon  in  his  favor,  but  the  cause  being  tried,  upon  the  plea  of  payment, 
and  a  verdict  rendered  for  the  plaintiff,  it  is  error  for  the  court  to  enter  a  judg- 
ment upon  that  verdict. 

WRIT  of  error  to  the  Common  Pleas  of  Tioga  county. 

Tliis  was  a  scire  facias  sur  mortgage,  at  the  suit  of  Samuel  W. 
Morris  against  Roswell  B.  Alford,  and  on  motion  William  Willard, 
who  had  purchased  the  mortgaged  premises  upon  a  sale  by  the  sheriff, 
was  admitted  a  co-defendant. 

The  cause  being  at  issue  upon  the  plea  of  payment,  with  leave, 
&c.,  and  ordered  on  for  trial, .William  Willard,  by  his  counsel,  pleaded 
specially — "  that  judgment  had  been  obtained  against  Roswell  "B. 
Alford,  subsequently  to  the  mortgage,  upon  which  a  fi.  fa.  was  issued 
and  levied  upon  the  mortgaged  premises,  which  were  afterwards 
condemned,  and  sold  upon  a  venditioni  exponas,  by  the  sheriff  to 
the  said  William  Willard,  for  $50,  .and  that  a  deed  therefor  had  been 
regularly  acknowledged  in  open  court  and  delivered  to  him." 

To  this  plea  the  plaintiff  demurred,  and  the  defendant  joined  in 
the  demurrer. 

The  cause  was  then  tried,  and  a  verdict  rendered  for  the  plaintiff, 
for  the  amount  of  the  mortgage,  $1000,  and  interest.  The  court 
entered  judgment  for  the  plaintiff. 

Lewis,  for  plaintiffs  in  error,  who  was  informed  by  the  court,  that 
the  point  involved  in  this  cause  had  already  been  determined. 

Ellis,  with  whom  was  Williston,  for  defendant  in  error,  declined 
an  argument  of  the  point  which  the  court  intimated  had  been  settled, 
that  a  sale  upon  a  junior  judgment  divested  the  lien  of  a  mortgage  ; 
but  contended  that  it  did  not  arise  in  this  case,  because  the  party 
had  waived  the  demurrer,  and  did  not  ask  the  court  to  render  any 
judgment  upon  it,  but  went  on  to  trial  upon  the  merits,  on  the  plea 
of  payment. 

The  judgment  of  the  Court  of  Common  Pleas  was  reversed,  and 
judgment  entered  for  the  defendants. 


June  1830.]  OF  PENNSYLVANIA.  481 


Steinbridge's  Appeal. 

Upon  an  appeal  from  the  decree  of  the  Court  of  Common  Pleas,  distributr 
ing  the  proceeds  of  real  estate  sold  by  the  sheriff,  the  affidavit  must  be  made 
by  the  party  ;  it  is  insufficient  if  made  by  the  attorney. 

The  order  of  the  Court  of  Common  Pleas,  opening  a  judgment  and  letting 
the  defendant  into  a  defence,  does  not  destroy  the  lien  from  the  original  date 
of  its  entry. 

THIS  was  an  appeal  from  the  decree  of  the  Court  of  Common 
Pleas  of  Northumberland  county,  distributing  the  proceeds  of  the 
sale  by  the  sheriff,  of  the  real  estate  of  Henry  Donnel. 

On  the  9th  June  1818,  George  Boyer  obtained  a  judgment  by 
default  against  Henry  Donnel,  in  an  action  of  debt  for  $'2000.  On 
the  22d  August  1818,  this  entry  was  made  upon  the  docket :  "  On 
motion  and  affidavit  filed,  judgment  opened,  and  defendant,  Henry 
Donnel,  let  into  a  defence."  On  the  23  January  1819,  "judgment 
by  consent  for  the  plaintiff,  for  $1131.11." 

On  the  22d  January  1819,  II.  G.  Steinbridge  obtained  a  judgment 
against  Henry  Donnel,  for  $157.60. 

The  lien  of  each  of  the  judgments  was  preserved  from  the  time  of 
their  original  entry,  until  the  sale  of  the  defendant's  real  estate  by 
the  sheriff. 

The  question  in  the  court  below  was,  whether  the  order  of  the 
court  of  the  22d  August  1819,  opening  the  judgment  of  George 
Boyer,  and  letting  the  defendants  into  a  defence,  did  not  destroy  the 
lien  of  the  judgment ;  which  was  not  again  acquired  until  the  23d 
January  1819,  one  day  after  Steinbridge  obtained  his  judgment. 

The  opinion  of  the  court  below  was,  that  the  judgment  was 
opened  merely  for  the  purpose  of  letting  the  defendant  make  defence, 
and  that  the  lien  remained ;  and  therefore  decreed  in  favor  of  George 
Boyer,  from  which  decree  Steinbridge  appealed. 

In  this  court  a  motion  was  made  to  quash  the  appeal,  on  the 
ground,  that  the  affidavit  upon  which  it  was  founded,  was  made  by 
the  attorney,  and  not  by  the  party. 

Bradford  and  Merril,  for  appellant. 
Greenougk  and  Packer,  for  appellee. 

PER  CURIAM. — The  appeal  is  to  be  had  on  terms  prescribed  in 
the  sixth  section  of  the  Act  of  the  llth  March  1809,  as  we  have 
heretofore  determined-;  and  in  Bryan  r.  McCuIlough,  at  the  present 
term,  ante.  421,  we  held  that  the  words  of  the  law  are  too  peremp- 
tory to  allow  the  affidavit,  which  is  made  a  requisite  preliminary  to 
an  appeal,  equally  with  a  writ  of  error,  to  be  made  by  any  one  but 
the  party.  The  inconvenience  of  this,  if  any  should  result,  will 

1  p.  &  W._31 


482  SUPREME  COURT  [Sunlury 

[Steinbridge's  Appeal.] 

doubtless  be  remedied  by  the  legislature,  to  whom  the  subject  exclu- 
sively belongs.  But  this  is  immaterial  here,  as  the  proceedings  are 
to  be  affirmed  on  the  merits.  A  judgment  may  be  opened,  or  it  may 
be  set  aside.  If  the  former,  it  remains  a  judgment  still,  and  with 
all  the  attributes  as  such,  of  which  the  order  of  the  court  has  not 
deprived  it.  Here  it  was  opened  to  let  the  party  into  not  even  a 
full  defence  ;  consequently  it  was  no  further  disturbed,  than  to  effect 
that  object.  Sometimes  the  judgment  is  expressly  ordered  to  stand 
as  a  security  ex  mnjore  cautcla;  but  that  is  unnecessary.  By  the 
construction  of  the  Acts  of  Assembly,  by  which  lands  may  be  seized 
in  execution,  lien  is  an  incident  of  every  judgment,  and  of  which  it 
can  be  deprived  only  by  being  set  aside.  That  was  not  done  here, 
and  the  court  below  determined  correctly,  that  the  lien  existed  from 
the  first  rendition.  Decree  affirmed. 

The  attorney  may  now  make  the  affidavit.     See  Act  27  March  1833,  sec.  2, 
Pamph.  L.  99. 


Lemon  against  Thompson's  Adm'rs. 

II.  S.  conveyed  a  house  and  lot  to  D.  L.,  in  consideration  whereof.  D.  L. 
executed  eight  single  bills,  of  fifty  dollars  each,  to  B.  T..  and  eight  to  J.  K., 
in  which  B.  T.  was  his  security.  D.  L.  and  B.  T.  entered  into  an  agreement, 
by  which  the  deed  from  II.  S.  was  to  remain  in  the  hands  of  15.  T.  as  a  secu- 
rity fur  the  payment  of  the  eight  notes  due  to  him,  and  the  eight  notes  due 
to  J.  K.  in  which  B.  T.  was  security.  B.  T.  afterwards,  and  before  the  pay- 
ment of  the  said  notes,  died,  having  first  made  a  will,  by  which  he  devised  to 
the  wife  of  D.  L.  the  aforesaid  house  and  lot.  Held,  that  such  devise  re- 
leased D.  L.  from  the  payment  of  the  eight  single  bills  to  B.  T.,  but  did  not 
release  him  from  the  payment  of  the  eight  single  bills  to  J.  K.,  in  which 
B.  T.  was  security. 

WRIT  of  error  to  the  Common  Pleas  of  Union  county. 

This  was  an  amicable  action  of  debt,  in  which  Henry  Yearirk, 
administrator  with  the  will  annexed  of  Benjamin  Thompson,  wns 
plaintiff,  and  Daniel  Lemon  was  defendant. 

The  following  facts  were  agreed  to  be  considered  in  the  nature 
of  a  special  verdict,  with  leave  to  either  party  to  take  out  a  writ  of 
error. 

Henry  Springer  and  wife,  on  the  30th  day  of  March  182*2,  exe- 
cuted a  deed  to  Daniel  Lemon  fora  house  and  lot  of  ground  in  New 
Berlin.  On  the  same  day,  Daniel  Lemon  executed  eight  single  bills, 
to  Benjamin  Thompson,  seven  of  which  were  for  $oO  each,  the  first 
payable  April  1st  1823,  and  so  on  annually,  on  the  1st  day  of  April 
in  each  year,  and  the  other  for  the  payment  of  $40,  on  the  1st  April 
1830.  Same  day,  Benjamin  Thompson  and  Daniel  Lemon,  exe- 
cuted eight  single  bills  to  John  Kelly,  for  like  sum  payable  as  above. 


June  1830.]  OF  PENNSYLVANIA.  483 

[Lemon  v.  Thompson.] 

Same  day,  Benjamin  Thompson  and  Daniel  Lemon  entered  into 
the  following  agreement  in  writing,  to  wit:  "March  30th  1822,  it 
is  agreed  that  the  above  deed  shall  lay  in  the  hands  of  Benjamin 
Thompson  as  a  pledge,  till  the  payments  to  Kelly  arid  Thompson 
are  all  made,  for  the  property  purchased  of  Springer  in  New  Ber- 
lin ;  and  when  made,  the  said  Thompson  or  his  executors  or  admin- 
istrators shall  deliver  the  deed  to  Lemon,  his  heirs,  executors  or 
administrators." 

It  is  further  agreed  that  the  consideration  for  the  house  and  lot 
in  New  Berlin,  conveyed  by  the  said  Henry  Springer  to  said  Lemon 
was  paid  to  said  Springer  by  said  Kelly  and  Thompson. 

It  is  further  agreed,  that  said  Thompson  made  his  last  will  and 
testament,  which  is  duly  proved  and  recorded  in  New  Berlin,  by 
which  the  said  Thompson  devised  the  said  house  and  lot  mentioned 
in  the  above  deed  to  the  wife  of  the  said  Daniel  Lemon. 

The  question  is,  whether  Daniel  Lemon  is  obliged  to  pay  the 
single  bills  above  mentioned,  as  given  by  him  to  said  Thompson  ; 
arid  also  whether  he  or  the  administrator  with  the  will  annexed,  is 
obliged  by  law  to  pay  the  said  single  bills  to  John  Kelly. 

If  the  court  should  be  of  opinion  that  Lemon  is  not  obliged  to 
pay  the  said  single  bills,  then  judgment  to  be  for  defendant ;  other- 
wise for  plaintiff. 

Opinion  of.  the  court  (Chapman,  president.) 

"  In  this  case  stated,  the  court  are  of  opinion,  that  Benjamin 
Thompson  devises  to  his  daughter,  the  wife  of  Daniel  Lemon,  all 
his  interest  in  and  arising  out  of  his  house  and  lot,  in  New  Berlin. 
This  is  evidently  the  intention  of  the  testator,  otherwise  his  daugh- 
ter would  take  nothing  by  the  devise;  by  which  Daniel  Lemon 
is  clearly  exonerated  from  the  payment  of  the  single  bills  given  by 
him  to  Benjamin  Thompson,  for  the  purchase-money,  but  he  is  not 
exonerated  from  the  payment  of  those  single  bills  given  by  him  to 
Kelly  as  part  of  the  purchase-money.  If  Lemon  was  obliged  to 
pay  all  the  purchase-money,  his  wife  could  take  nothing  by  the 
devise;  the  court  in  the  above  case  order  judgment  for  the  phiin- 
tiflf  as  far  as  the  bonds  to  Kelly  are  concerned,  and  judgment  for 
the  defendant,  as  far  as  the  bonds  to  Thompson  are  concerned.' 

Merrill,  for  plaintiff  in  error,  contended  that  the  court  below 
should  have  entered  judgment  generally  for  the  defendant. 


Lashells,  contra. 


Judgment  affirmed. 


484  SUPREME  COURT  [Sunkun, 


Halm  et  al.  against  Smith. 

The  land  of  D.  II.  having  been  levied,  and  advertised  for  sale  by  the  sheriff 
on  a  venditioni  exponas,  before  the  day  of  sale,  D.  II.,  by  a  verbal  agreement, 
transferred  the  surplus  of  what  the  land  might  sell  for,  beyond  the  payment 
of  encumbrances,  to  L.  S.,  to  indemnify  him  against  certain  liabilities.  Two 
days  after  the  sale,  before  the  deed  was  acknowledged,  and  before  all  the 
purchase-money  was  paid,  A.  D.  II.  entered  a  judgment  against  I).  II.  and 
issued  a  fi.  fa.  with  directions  to  the  sheriff  to  retain  the  surplus:  //<•/</,  that 
the  judgment  entered  after  the  day  of  sale  was  not  a  lien  on  the  land  ;  and 
the  fi.  fa.  could  not  take  the  money,  because  the  agreement  between  D.  II.  and 
L.  S.  was  a  legal  transfer  of  it  before  it  issued. 

ERROR  to  Union  county. 

This  was  an  amicable  action  in  which  Leonard  Smith  was  the 
plaintiff  and  Abraham  D.  Halm  and  Joseph  11  heads  were  the  de- 
fendants. It  was  an  issue  to  try  the  right  to  money  in  the  hands 
of  the  sheriff,  which  arose  out  of  the  sale  of  the  real  estate  of 
Daniel  Iluntzecher,  under  the  following  facts : 

Judgments  had  been  obtained  against  Iluntzecher  to  the  amount 
of  $2606.53,  upon  some  of  which  executions  were  issued  and  levied 
upon  his  real  estate,  and  which  was  advertised  for  sale  by  the 
sheriff.  Leonard  Smith,  the  plaintiff,  was  security  in  two  debts, 
which  Iluntzecher  owed,  amounting  to  about  $361,  and  which  were 
not  secured  by  judgment.  After  the  property  was  advertised,  and 
before  the  day  of  sale,  Smith  went  to  Huntzecher,  to  know  how  he 
would  secure  him  against  the  payment  of  the  two  debts  for  which 
he  was  his  bail ;  Iluntzecher  replied  that  he  had  no  way  to  save 
him,  unless  he  would  buy  the  property  at  the  sheriff's  sale ;  that 
it  was  worth  more  than  the  amount  of  the  judgments  against  it, 
and  if  he  would  buy  it,  he  should  have  the  surplus  as  an  indem- 
nity against  the  payments  of  those  claims.  Smith,  in  pursuance 
of  this  agreement,  made  an  arrangement  with  the  judgment  cred- 
itors of  Iluntzecher,  which  enabled  him  to  buy  the  property  at 
sheriff's  sale,  and  it  was  struck  down  to  him  by  the  sheriff,  on  the 
27th  June  1820,  for  $297o.  On  the  7th  July  1S29,  Iluntzecher 
gave  Smith  a  written  order  on  the  sheriff  to  pay  him  the  balance 
of  the  purchase-money  after  the  payment  of  the  liens.  On  the 
16th  of  September  1829,  Smith  having  paid  all  his  purchase-money, 
the  sheriff  acknowledged  the  deed  to  him.  Smith  in  pursuance 
of  the  agreement  and  order  of  Iluntzecher,  then  claimed  $305.36, 
from  the  sheriff,  being  the  balance,  after  the  payment  of  the  liens, 
which  existed  against  the  land  on  the  day  of  sale. 

This  balance  was  claimed  also,  by  Hahn  and  Hhoads,  under  the 
following  circumstances.  On  the  same  day  Huntzecher's  land  was 
sold,  but  after  the  sale,  he  executed  a  judgment-bond  to  Hahn  for 
$200,  which  was  entered  on  record  on  the  2(Jth  June  1829,  and 


June  1830.]  OF  PENNSYLVANIA  485 

[Ilahn  ?:.  Smith.] 

upon  which,  on  the  1st  August  1829,  an  execution  issued,  with 
direction  to  the  sheriff  to  levy  upon,  or  retain  this  balance  of 
$305.36. 

Rhoads,  on  the  1st  July  1829,  obtained  a  judgment-bond  upon 
Iluntzecher,  which  was  entered  of  record  on  the  14th  July  1829, 
and  which  he  claimed  to  be  a  lien  on  the  land,  and  entitled  to  the 
residue  of  this  balance,  after  the  payment  of  Halm's  judgment  and 
execution. 

The  court  below  (Chapman,  president),  was  of  opinion  that  the 
judgment  of  Ilahn  and  Rhoads,  entered  after  the  sale  by  the  sheriff, 
were  riot  liens  upon  the  land,  although  the  deed  to  the  purchaser 
was  not  acknowledged  until  a  subsequent  time ;  and  that  the  ac- 
knowledgment of  the  deed  had  relation  back  to  the  time  of  sale. 

The  court  was  also  of  opinion,  that  the  agreement  between  Hunt- 
zecher  and  Smith,  in  relation  to  the  surplus  after  the  payment  of 
liens,  and  the  order  of  Iluntzeeher  to  the  sheriff,  in  favor  of  Smith, 
was  a  legal  appropriation  or  transfer  of  that  surplus,  and  therefore 
the  execution  in  favor  of  Ilahn  was  not  a  lien  upon  it  in  the  hands 
of  the  sheriff.  Judgment  was  therefore  rendered  for  the  plaintiff. 
To  which  opinion  the  defendants  cxcepted. 

Sterrett,  for  plaintiffs  in  error. 
Merrill  and  Lashells,  contra. 

Judgment  affirmed. 
Distinguished  12  II.  400. 


Lemon  ayainst  Bishop. 

Where  a  plaintiff  and  defendant  reside  in  the  same  town,  a  copy  of  a 
notice  to  take  depositions  left  at  the  house  of  the  defendant,  with  the  defend- 
ant's daughter,  by  the  plaintiff,  more  than  ten  days  before  the  day  appointed 
for  taking  the  depositions,  is  not  a  sufficient  service  of  notice. 

ERROR  to  the  Common  Pleas  of  Union  county. 

Upon  the  trial  of  this  cause  in  the  court  below,  the  plaintiff 
offered  in  evidence  a  deposition,  which  the  defendant  objected  to, 
on  the  groind  that  legal  notice  of  the  taking  of  it  had  nut  been 
given  to  him. 

Daniel  Lemon,  the  plaintiff,  having  been  sworn,  said,  he  left  a 
copy  of  the  notice  more  than  ten  days  before  the  taking  of  the  depo- 
sition, at  Bishop's  house  ;  he  gave  it  to  his  daughter,  who  was  about 
eighteen  years  of  age.  Bishop  was  not  at  home,  and  his  wife  was 
unwell ;  his  daughter  said  he  was  at  Weirichstown,  about  four  miles 
from  home  :  he  did  not  see  Bishop,  after  the  notice  was  served, 
until  after  the  deposition  was  taken  ;  he  did  not  call  in  the  evening 


186  SUPREME  COURT  [Sunbury 

[Lemon  r.  Bishop.] 

to  see  if  Bishop  got  the  notice.'  They  live  in  the  same  town,  about 
two  squares  from  each  other ;  he,  the  plaintiff,  left  town  the  next 
morning,  and  did  not  return  until  after  the  deposition  had  heen 
taken. 

The  court  did  not  deem  the  notice  sufficient,  and  overruled  the 
evidence.  The  rule  of  court  on  the  subject  did  not  provide  for  the 
kind  of  service  of  notice  which  was  necessary. 

Merrill,  for  plaintiff  in  error,  cited  Bauman  et  ux.  v.  Zinn  et  al., 
3  Yeates  157 ;  Bujac  v,  Morgan,  3  Id.  258. 

Lashells,  contra,  cited  Yoris  v.  Smith,  13  S.  &  R.  334. 

Judgment  affirmed. 


White  against  Weeks. 

Where  no  consideration  is  expressed  in  a  deed  of  bargain  and  sain,  parol 
evidence  may  be  given  to  show  that  a  consideration  did  pass  from  the  gran- 
tee to  the  grantor. 

WRIT  of  error  to  the  Common  Pleas  of  Li/coming  county. 

This  was  an  action  of  ejectment  brought  by  Mary  Weeks,  the 
defendant  in  error,  against  Abel  White. 

The  plaintiff,  in  order  to  make  out  her  title  to  the  land  in  con- 
troversy, offered  in  evidence  a  deed  of  which  the  following  is  a  copy, 
together  with  parol  evidence  of  the  consideration  thereof. 

"  I  do  hereby  sell,  assign,  transfer  and  set  over  unto  Mary  Weeks, 
any  piece,  tract  or  parcel  of  land,  which  may  be  found  to  belong  to 
me,  as  part  of  my  purchase  of  the  estate  of  Jesse  Weeks,  deceased  ; 
provided,  nevertheless,  that  this  grant  shall  not  bo  taken  or  con- 
gtrued  in  any  manner  to  interfere  with  Samuel  McLecs,  or  to  in- 
clude anv  land  granted,  or  intended  to  bo  granted  in  mv  deed,  dated 
30th  July  1825,  to  said  Samuel  McLees. 

"Witness  my  hand  and  seal,  January  14th  182<>. 

ELIJAH  BAHHIT."  [SEAL.]" 

This  evidence  was  objected  to  by  the  defendant,  the  objection 
was  overruled  by  the  court,  and  exception  taken. 

C<vti/~ifn'Ui  for  plaintiff  in  error. — No  particular  set  of  words  are 
necessary  to  constitutes*  deed  of  bargain  and  sale  :  1  Wils.  Bar.  Abr. 
4<>H  ;  Jackson  v.  Alexander.  3  Johns.  R.  4S4.  To  the-  validity  of 
such  deed  a  valuable  consideration  is  essential  :  1  Wils.  Bac.  Abr. 
4<)i* ;  Jackson  v.  Sebring,  1<>  Johns.  R.  515.  And  that  consid- 
eration must  be  expressed  in  the  body  of  the  deed ;  no  parol  evi- 


June  1830.]  OF  PENNSYLVANIA.  487 

[White  v.  Weeks.] 

donee  can  be  given  thereof,  unless  it  be  contained  in  the  deed,  that 
a  consideration  did  pass,  then  only  can  it  be  proved  by  parol  what 
that  consideration  was :  Moore  v.  Bilham,  4  Binn.  1  ;  Peake's  Ev. 
121;  Mildmay's  Case,  1  Coke's  Rep.  17(5;  1  Phila.  Ev.  495; 
Sears  u.  Brink,  3  Johns.  11.  211  ;  1  Phila.  Ev.  501-2;  3  Stark. 
Ev.  99-5-7. 

The  Statute  of  Frauds  and  Perjuries  would  be  violated,  in  its 
spirit,  by  the  admission  of  parol  evidence  to  make  this  a  good  deed. 
If  the  consideration  can  be  supplied  by  parol,  so  may  also  any  other 
material  part.  The  quality  of  the  estate  granted  may  be  made  out 
by  parol,  or  the  quantity  of  the  land  increased  or  diminished.  The 
practice  of  expressing  the  consideration  in  the  deed  is  almost  uni- 
versal, hence  is  a  strong  proof  of  its  necessity. 

Anthony i  for  defendant  in  error. — A  deed  under  seal  imports  a 
consideration,  whether  expressed  or  not :  Roberts  on  Fraudulent 
Conveyances  119 ;  but  if  it  is  not  expressed,  it  may  be  proved  by 
parol:  11  Coke's  Rep.  24-5;  Jackson  v.  Fish,  10  Johns.  R.  45b' ; 
Hartley  v.  McAnulty,  4  Yeates  95 ;  o  Stark.  Ev.  1004  ;  Daven- 
port v.  Mason,  15  Mass.  '92 ;  1  Phila.  Ev.  481-2  ;  Langely  r. 
Brown,  2  Atk.s.  202. 

In  Moore  v.  Bieham,  4  Binn.  1,  this  question  is  not  raised,  much 
less  decided,  for  in  that  case  the  parol  evidence  was  not  offered. 

If  the  deed  was  defective  for  want  of  an  expressed  consideration, 
the  defendant  could  not  take  advantage  of  it. 

Judgment  affirmed. 

Referred  to,  7  C.  270;  4  Smith  82;  5  Id.  518  ;  13  Id.  374. 

Commented  on,  3  W.  15S. 

Followed,  12  Wr.  496  :  G  Smith  139 ;  29  Id.  443. 


Honnitcr  against  Brown. 

A  judgment  was  rendered  by  a  justice  of  the  pence  for  the  plaintiff,  the 
defendant  appealed  to  the  Common  Pleas,  he  afterwards  appealed  from  an 
award  of  arbitrators  against  him,  ami  paid  the  eosts.  t'pon  a  trial  of  the 
cause  by  a  jury,  the  defendant  j^ave  evidence  which  had  nut  been  i:iven  to 
the  justice  nor  to  the  arbitrators,  and  a  general  verdict  was  rendered  in  his 
favor:  Held,  that  he  was  entitled  to  recover  from  the  plain ti IV  tlu  costs 
which  he  had  paid  upon  the  appeal. 

ERROR  to  the  Common  Pleas  of  Li/cotniny  county. 

This  suit,  in  which  James  Brown,  the  defendant  in  error,  was 
plaintiff  below,  and  George  Honniter  was  defendant,  originated  he- 
fore  a  justice  of  the  peace,  who  rendered  a  judgment  in  favor  of  the 
plaintiff  for  $80,  from  which  the  defendant  appealed  to  the  Common 
Pleas,  where  the  cause  was  referred  under  the  compulsory  arbitra- 
tion law  ;  the  arbitrators  made  a  report  in  favor  of  the  plaintiff  for 


488  SUPREME  COURT  [Sunbury 

[Honniter  c.  Brown.] 

390.  From  this  award  the  defendant  again  appealed,  and  paid  the 
costs,  amounting  to  $30.  The  cause  was  afterwards  tried  by  a  jury, 
and  a  verdict  and  judgment  rendered  for  the  defendant.  The  de- 
fendant gave  evidence  to  the  jury  which  had  not  been  given  to  the 
justice,  nor  to  the  arbitrators. 

The  question  in  the  court  below  was,  whether  the  defendant  was 
entitled  to  recover  from  the  plaintiff  the  costs  which  he  had  paid 
when  he  appealed  from  the  award  of  arbitrators. 

That  court  determined  that  the  costs  paid  upon  the  appeal,  under 
the  circumstances  of  this  case,  were  not  recoverable  from  the  plain- 
tiff. 

Parsons,  for  plaintiff  in  error. — The  defendant,  having  given  new 
evidence  to  the  jury,  cannot  recover  his  own  costs  ;  under  the  cir- 
cumstances of  this  case,  each  party  must  pay  his  own,  but  those 
which  the  defendant  seeks  to  recover  are  the  costs  of  the  plaintiff, 
paid  by  him  on  the  appeal :  Gonsalus  v.  Liggitt,  1  Rawle  427. 

Armstrong  and  Anthony,  for  defendant  in  error,  cited  Flick  v. 
Boucher,  16  S.  &  R.  373 ;  Shaeffer  v.  Landis,  1  Id.  449 ;  Kimble 
v.  Saunders,  10  Id.  193;  Purd.  Dig.  20.. 

This  court  was  of  opinion  that  the  defendant  was  entitled  to  re 
cover  the  costs  paid  by  him  on  the  appeal. 

Judgment  reversed. 
Followed,  1  W.  45. 


APPENDIX. 


[Several  cases  having  been  omitted  in  their  proper  places,  from  circumstances 
not  under  the  control  of  the  reporters,  they  are  introduced  here.] 


WESTERN  DISTRICT— SEPTEMBER  TERM,  1829. 


Evens  against  Beatty  et  al. 

IN    ERROR. 

When  it  was  proposed  to  sell  depreciation  lands  at  auction,  the  country 
was  divided  into  districts,  and  the  lands  surveyed.  And  when  the  plan  of 
sale  by  auction  was  abandoned,  and  the  country  thrown  open  to  settlement  or 
sale  in  the  ordinary  mode  by  warrant  from  the  Land  Office,  the  country  was 
again  divided  into  districts. 

It  is  understood  that  the  boundaries  of  these  districts  of  1792  were  not  the 
same,  in  general,  with  the  boundaries  of  the  depreciation  districts. 

If  the  surveyors  of  adjoining  districts  agreed  uj»on  the  dividing  line  between 
their  respective  districts,  or  adopted  a  line  already  run,  such  line  is  to  be 
considered  the  line  between  them,  although  it  should  be  ascertained  by  survey 
to  give  the  district  less  or  more  than  by  law  was  allotted  to  a  district:  and 
surveys  made  by  the  surveyors  of  the  respective  districts  within  such  line,  in 
their  respective  districts,  are  good. 

After  the  lapse  of  forty  years,  evidence  is  not  required  how  such  line  was 
run,  when  run  or  by  whom  ;  on  proof  that  the  respective  surveyors  had 
surveyed  to  such  ancient  line  as  a  boundary  in  their  respective  districts,  it 
should  be  considered  as  the  regular  legal  district  line. 

WRIT  of  error  to  the  Common  Pleas  of  Beaver  county. 

Fetterman,  for  the  plaintiff  in  error. 

Moore  and  Selden,  for  the  defendant  in  error. 

The  facts  of  the  case  are  fully  stated  in  the  opinion  of  the  court, 
which  was  delivered  hy 

HUSTON,  J. — The  plaintiff  here  was  plaintiff  below,  and  brought 
his  ejectment  to  recover  a  tract  of  land,  under  the  following  circum- 
stances : 

In  the  spring  of  1700,  James  Ilillman  settled  on  the  land  in  ques- 
tion, intending  to  hold  it  by  improvement.  In  175*7  he  sold  his 
possession  and  right  to  J.  Beatty,  for  £800.  Of  this.  8400  were 
paid  in  cash,  and  the  remaining  8400  were  retained  until  it  was 
ascertained  whether  the  lands  could  be  held  bv  improvement,  or 

14S9) 


490  SUPREME  COURT  [Pittsburgh 

[Evans  r.  Beatty.] 

would  DC  taken  from  the  settler  by  any  of  the  warrants  which  here- 
tofore may  have  been  taken  out ;  a  bond  was  given  for  this  money, 
and  both  the  article  and  bond  were  assigned  to  the  plaintiff. 

Several  points  were  discussed  and  decided  by  the  Court  of  Com- 
mon Pleas,  which  it  is  not  considered  necessary  to  detail.  The  opin- 
ion of  the  court  was  right  on  each  point.  But  one  matter  was 
agitated  which  we  think  ought  to  be  put  to  rest  speedily.  The  pop- 
ulation company  had  warrants  in  the  hands  of  the  deputy-surveyor. 
The  lands  in  question  had  been  surveyed  as  depreciation  lands,  and 
the  warrants  of  the  population  company  applied  to  those  depreciation 
surveys,  and  so  far  the  case  of  McCrea  and  Plummer,  decided  this 
case.  But  it  was  alleged  that  the  lands  in  question  did  not  lie  in 
the  district  of  Jonathan  Leet,  who  returned  them,  and  the  sixth 
section  of  the  Act  of  the  2d  of  April  1792,  declares  any  survey 
made  by  any  deputy-surveyor,  out  of  his  district,  void  and  of  no 
effect.  When  it  was  proposed  to  sell  the  depreciation  lands  at  auc- 
tion, the  country  was  divided  into  districts,  and  the  lands  surveyed. 
When  the  plan  of  sale  by  auction  was  abandoned,  and  the  country 
thrown  open  to  settlement,  or  sale  in  the  ordinary  mode  by  warrant 
from  the  land  office,  the  country  was  again  divided  into  districts,  and 
deputy-surveyors  appointed.  It  is  understood  that  the  boundaries 
of  these  districts  in  1792  were  not  the  same  in  general  with  the 
boundaries  of  the  depreciation  districts.  When  the  country  began 
to  settle,  certain  lines  were  known  and  shown  as  district  lines  ;  and 
it  was  not  always  distinguished  whether  the  line  spoken  of  was  a 
line  of  a  depreciation  district,  or  of  a  district  of  1792. 

In  the  testimony  in  this  case  we  find  some  confusion,  from  not  dis- 
tinguishing what  district  line  the  witness  was  speaking  of. 

The  deputation  and  instructions  of  the  surveyor-general  to  Jona- 
than Leet,  were  given  in  evidence.  They  refer  to  the  district  of 
John  Ilogue,  and  two  other  marks  of  designation.  In  order  to  as- 
certain the  line  between  Ilogue's  and  Leet's  district,  a  Mr.  Martin 
had  begun  at  the  western  line  of  the  state,  and  run  east  eleven  miles 
arid  one  hundred  and  seventeen  perches  (why  he  did  not  run  twelve 
miles,  the  distance  called  for,  does  not  appear).  lie  then  run  south 
to  the  Ohio,  found  a  line  which  he  says  he  heard  of  before,  that  it 
w^s  Cunningham's  line,  and  again  he  says  it  was  called  a  district 
line. 

John  Ilogue's  commission  was  not  shown  at  the  trial,  nor  have 
we  it  now.  The  counsel  have  assumed,  and  I  shall  assume,  that  his 
district  was  to  adjoin  the  western  line  of  the  state,  and  to  be  bounded 
south  by  the  Ohio  river,  and  to  extend  east  from  the  state  line,  twelve 
miles,  and  it  seems  that  the  line  to  which  he  surveyed,  and  all  on  the 
east  side  of  which  was  surveyed  and  returned  by  Leet,  is  not  twelve 
miles  east  of  the  state  line. 

Whether  John  Ilogue  followed  the  meanders  of  the  Ohio  twelve 
miles,  and  thus  made  much  less  than  twelve  miles  due  cast ;  or 


Sept.  1829.]  OF  PENNSYLVANIA.  491 

[Evens  v.  Beatty.J 

whether  there  was  an  old  division  line  between  two  depreciation 
districts,  which  Hogue  and  Leet  agreed  should  be  the  line  between 
their  districts,  or  whether,  as  I  believe  the  fact  was,  the  surveyor- 
general  was  mistaken  in  the  extent  of  the  country  east  and  west ; 
and  that  there  was  not  distance  to  allow  each  district  the  allotted 
space,  I  know  not,  nor  is  it  material.  The  act  directed  districts  to 
be  designated,  and  a  deputy-surveyor  to  be  appointed  for  each  ; 
and  each  to  confine  himself  to  his  district ;  for  the  safety  and  secu- 
rity of  those  who  should  become  owners  of  lands  in  that  part  of  the 
state. 

It  was  perfectly  immaterial  to  all  but  John  Hogue  and  Jonathan 
Leet,  whether  the  north  and  south  line,  which  divided  their  districts, 
was  nine,  or  ten,  or  eleven,  or  twelve  miles  east  from  the  western 
line  of  the  state.  But  it  was  most  material  that  John  Hogue  and 
Jonathan  Leet  should  agree  on  a  line  which  should  be  the  line  of 
their  respective  districts,  and  that  John  Hogue  should  confine  his 
surveying  to  the  west  side,  and  Leet  his  surveying  to  the  east  side 
of  that  line.  They  did,  it  seems,  agree,  and  run  such  a  line,  or  find 
it  already  run,  and  adopted  it.  There  is  no  allegation  that  admit- 
ting this  to  be  the  line  of  their  districts,  that  either  has  ever  passed 
beyond  it. 

The  plaintiff  contends  that  he  must,  at  all  events,  give  Ilogue  his 
distance,  twelve  miles,  due  east.  This  idea  followed  on,  will  give 
Leet  his  distance  due  east,  and  thus  bring  him  into  the  district  of  his 
neighbor  to  the  east.  And  thus,  under  the  pretext  of  doing  every 
thing  correctly,  unsettle  the  titles  to  a  few  hundred  tracts  of  land. 
The  same  spirit  would  inquire  whether  more  skilful  men,  with  bet- 
ter instruments,  would  not  change  the  line  between  Pennsylvania 
and  Maryland,  Pennsylvania  and  Ohio  and  New  York  ;  and  the 
same  spirit  has  been  endeavoring  to  pick  a  few  acres  out  of  every 
tract  of  land,  when  any  overplus  in  the  survey  occurred,  and  rob  a 
man  of  his  whole  land,  if  carelessness  or  inattention,  or  something 
worse,  in  the  surveyor,  or  chainman,  or  marker,  has  left  something 
undone,  or  done  anything  wrong; 

Better,  said  a  great  judge,  on  a  very  solemn  occasion,  to  give  a 
new  construction,  and  entirely  different  legal  effect  to  certain  ex- 
pressions, than  to  unsettle  or  overturn  ten  thousand  estates. 

We  are  not  called  on  here  to  introduce  any  thing  new  into  the 
jurisprudence  of  our  country.  When  the  line  of  a  surveyor  of  a 
district  is  in  question,  we  have  adhered  to  it.  when  it  can  be  ascer- 
tained that  it  was  run  at  a  particular  place,  that  it  did  injury  to  no 
one  at  the  time,  and  that  it  has  become  a  land-mark  of  property. 
The  court  was  then  right  in  directing  the  jury,  that  if  they  had  evi- 
dence to  prove  the  line  spoken  of  by  the  witnesses,  to  have  been 
adopted  as  the  division  line,  the  surveys  being  in  Loot's  district, 
according  to  that  line,  would  be  good. 

Length  of  time  has  added  force  to  the  principle   in  this  case. 


492  SUPREME  COURT  [Pittsburgh 

[Evens  r.  Beatty.] 

After  the  lapse  of  nearly  forty  years,  I  would  not  require  any  evi- 
dence of  how  it  was  run,  or  when  run,  or  by  whom.  On  proof  that 
one  had  surveyed  west  of  it,  and  to  it  as  a  boundary,  and  the  other 
east  of  it,  and  to  it  as  a  boundary,  I  would  consider  it  the  regular 
legal  district  line,  totally  superior  to  all  attack  or  dispute,  by  sharp 
measures  or  prowling  regulators,  of  whatever  description  ;  no  matter 
under  what  pretext  or  excuse  they  attempted  to  destroy  titles  and 
disturb  the  peace  of  the  community.  .  Judgment  affirmed. 


Leinhart  against  Forringer. 

IN    ERROR. 

In  an  action  for  money  had  and  received,  brought  to  April  term  1825,  to 
recover  the  amount  paid  on  an  article  of  agreement  for  the  sale  of  land, 
which  was  entered  into  between  the  parties,  in  the  year  1800,  where  nothing 
had  been  done  by  the  defendant  until  1824,  which  would  entitle  the  plaintift* 
to  rescind  the  contract,  the  Statute  of  Limitations  is  insufficient  to  bar  the 
action.  • 

ERROR  to  the  Court  of  Common  Pleas  of  Butler  county. 
This  case  was  argued  by 

Grilmore,  for  the  plaintiff  in  error. 
Ayres,  contrA. 

The  facts  of  the  case  are  fully  stated  in  the  opinion  of  the  court, 
delivered  by 

GIBSON,  C.  J. — In  the  year  1800,  the  parties  entered  into  articles, 
in  which  it  was  declared  that  the  plaintiff  below  had  bought  of  the 
defendant  one  hundred  acres  of  land  on  the  head  waters  of  Sugar 
Creek,  and  that  the  plaintiff  had  "  the  right  and  title  for  the  said 
land."  There  was  no  covenant  that  the  defendant  would  convey  ; 
indeed  the  person  who  drew  the  article  appears  to  have  been  alto- 
gether unskilled  in  the  business  of  a  scrivener,  or  the  ordinary  im- 
port of  the  most  familiar  words.  The  plaintiff  paid  the  purchase- 
money  without  going  into  possession,  and  took  no  further  step  till 
about  the  year  1815,  when  in  consequence  of  having  understood 
that  the  defendant  had  conveyed  the  land  to  a  stranger,  he  directed 
one  Gilleland,  to  request  the  defendant  to  return  the  purcha.se- 
raoney,  which  the  defendant  refused  to  do,  but  offered  to  give  the 
land.  On  this  footing  the  matter  was  again  suffered  to  rest  till 
1824,  when  one  Croll  called  on  the  defendant  (whether  on  behalf 
of  the  plaintiff  does  not  explicitly  appear),  arid  asked  him  to  show 
the  land  which  the  plaintiff  had  bought  of  him  ;  on  which  the  de- 
fendant said  "  he  had  no  land,  and  that  he  did  not  know,  nor  had 


Sept.  1829.]  OF  PENNSYLVANIA.  493 

[Leinhart  v.  Porringer.] 

ever  seen  Leinhart"  (the  plaintiff).  Croll  then  desired  "  to  know 
for  certain  about  the  land  ;"  and  the  defendant  "still  declared  that 
he  did  not  know  Leinhart."  Croll  then  asked  "if  he  would  know 
any  thing  supposing  he  would  see  the  article  and  receipt ;"  to  which 
Forringer  said,  "  he  did  not  want  to  see  the  article,  and  still  declared 

O  '  * 

lie  did  not  know  the  man,"  but  said  "  that  if  this  deponent  (Croll), 
wanted  to  buy  land,  he  had  one  hundred  acres  on  Little  Sugar 
Creek  that  he  would  sell."  This  is  an  exact  statement  of  the  whole 
case,  the  material  parts  of  which  are  in  the  very  words  of  the  par- 
ties or  witnesses  ;  and  we  are  to  bear  in  mind,  that  the  only  ques- 
tion raised  on  the  record,  is  whether  this  action  to  recover  back  the 
purchase-money  which  was  brought  to  April  term  1825,  is  barred 
by  the  Statute  of  Limitations. 

The  statute  never  begins  to  run  before  the  right  of  action  has 
accrued ;  which  in  a  case  like  the  present,  is  when  the  defendant 
has  put  it  in  the  power  of  the  plaintiff  to  rescind  the  contract. 
While  it  remains  in  force,  the  vendee  cannot  allege  that  the  pur- 
chase-money was  paid  to  his  own  use ;  when  by  the  terms  of  the 
contract,  it  was  paid  to  the  use  of  the  vendor.  When  did  the  con- 
duct of  the  defendant  first  authorize  the  plaintiff  to  dispense  witn 
the  contract  here  ?  For  fifteen  years  both  parties  were  content  to 
let  the  matter  stand  on  its  original  footing  ;  but  the  plaintiff  having 
called  then  for  a  return  of  the  purchase-money,  the  defendant,  as 
he  had  a  right  to  do  (having  done  nothing  amiss),  insisted  on  hold- 
ing him  to  the  bargain,  and  in  this  state  matters  remained  till  1824, 
previous  to  which,  the  remedy  of  the  plaintiff,  if  he  had  any,  was 
an  action  of  covenant  in  affirmance  of  the  contract,  against  which 
the  statute  would  not  have  run.  It  is  clear  then,  that  as  no  implied 
assumpsit  arose  till  within  a  few  months  before  the  commencement 
of  the  present  suit,  a  right  of  action  for  this  cause  did  not  previously 
accrue  within  the  intent  and  meaning  of  the  statute.  It  is  no  ob- 
jection, that  the  cause  of  action  in  substance  accrued  immediately 
after  the  execution  of  the  articles,  and  that  there  is  no  essential  dif- 
ference between  this  action  on  an  ideal  promise,  and  an  action  on 
the  covenant,  the  object  of  both  being  damages  for  a  breach  of  the 
contract.  Be  it  so;  but  why,  therefore,  is  this  action  to  he  put  on 
a  footing  more  unfavorable  than  that  of  an  action  of  covenant  against 
which  the  statute  does  not  run  ?  The  matter  is  detenninable  by 
the  form  of  the  action  ;  and  there  is  nothing  to  give  rise  to  an  im- 
plied assumpsit  before  the  contract  was  renounced  by  the  defendant 
in  1824.  Previous  to  that,  there  was  no  fraud  in  the  concoction  of 
the  agreement,  or  act  done  which  would  have  entitled  either  party 
to  rescind.  It  was  not  shown  that  the  defendant  had  conveyed  to 
a  stranger,  or,  if  it  had  been  so,  that  the  plaintiff  was  apprised  of 
the  fact  six  years  before  the  commencement  of  his1  action  ;  without 

1  In  such  a  case  the  statute  would  be  a  bar.     4  II.  l.">8. 


494  SUPREME  COURT  [Pittsburgh 

[Leinhart  r.  Forrin^cr.J 

which  the  cause  of  action  could  not  have  accrued  at  a  period  suffi- 
ciently early  to  bar  him  ;  which  is  the  only  point  submitted  to  us. 
Whether  the  defence  ought  to  have  been  sustained  on  grounds  inde- 
pendent of  the  statute,  is  not  the  question.  That  matter  passed 
without  exception  at  the  trial,  and  is  consequently  not  before  us  here. 
But  even  on  the  merits,  I  would  hold  that  the  plaintiff  ought  to 
recover.  Both  parties  have  shown  such  backwardness  as  would  pre- 
clude cither,  but  especially  the  defendant,  from  calling  for  a  specific 
execution ;  and  although  a  chancellor  will  sometimes  refuse  to  exe- 
cute a  contract,  for  reasons  that  would  be  insufficient  to  rescind  it, 
but  leave  the  party  to  his  remedy  at  law,  yet  here,  in  the  absence 
of  a  covenant  to  convey,  I  can  discern  no  remedy  on  the  contract, 
by  which  the  plaintiff  could  recover  back  the  purchase-money  in  the 
shape  of  damages  or  otherwise.  It  surely  will  not  be  insisted,  that 
the  defendant  ought  to  be  suffered  to  keep  the  money  and  the  land 
too ;  but  that  consequence  would  be  inevitable,  did  not  his  denial 
of  the  bargain  ipso  facto  entitle  the  plaintiff  to  an  action  in  disaf- 
firmance  of  the  contract.  It  seems  to  me  there  was  enough  in  the 
circumstances  of  the  case  to  enable  the  jury  to  infer,  that  Oroll  acted 
for  the  plaintiff  when  the  defendant  denied  the  bargain  ;  and  unques- 
tionably the  plaintiff  might  renounce  the  contract  after  it  had  been 
repudiated  by  the  defendant.,  But  that  matter  was  settled  without 
exception  at  the  trial ;  and  here  the  point  raised  is  the  supposed 
cfl'ect  of  the  Statute  of  Limitations,  which  a  majority  of  the  court 
deem  insufficient  to  bar  the  action.  Judgment  affirmed. 

Referred  to,  10  Wr.  16. 


Sept.  1829.]  OF  PENNSYLVANIA.  405 


Meredith  against  Shewall. 


The  sheriff  is  a  competent  witness  to  prove  the  words  ''  Proceedings  stayed 
by  plaintiff's  attorney,"  which  hud  been  endorsed  on  ti  writ  of  liberari  facias, 
and  signed  by  the  sheriff  and  which  were  struck  out  or  erased  by  a  line  run 
through  them,  though  still  legible,  were  his  return  to  that  writ,  and  that  lie 
had  not  struck  them  out. 

It  is  competent  to  prove,  and  that  by  the  sheriff,  that  upon  such  writ  of 
liberarr  facias,  he  did  not  deliver  the  land  to  the  plaintiff,  although  it  was  set 
forth  in  the  inquisition  returned  with  the  writ,  that  the  sheriff  and  inquest 
had  caused  to  be  delivered  the  property  extended,  "  until  the  debt  and  dam- 
ages in  the  same  writ  mentioned,  together  with  interest,  &c..,  be  fully  levied." 

An  inquest  'under  a  liberari  facias  can  only  determine  the  value  of  the 
land,  the  yearly  rents  and  profits,  and  the  term  during  which  it  shall  be  ex- 
tended. The  delivery  of  the  land  is  the  executive  duty  of  the  sheriff  alone. 

ERROR  to  the  Court  of  Common  Pleas  of  Fayette  county,  where 
a  verdict  and  judgment  were  had  in  favor  of  the  defendant,  to  which 
the  plaintiff  took  this  writ. 

The  case  was  argued  by 

Irwin,  for  the  plaintiff  in  error,  and  by 
Swing,  for  the  defendant  in  error. 

The  facts  of  the  case  are  fully  stated  in  the  opinion  of  the  court, 
which  was  delivered  by 

SMITH,  J. — The  parties  entered  an  amicable  action,  to  try  their 
right  to  the  proceeds  arising  from  the  sale  of  the  real  estate  of  a  cer- 
tain Stewart  II.  Whitehill,  which  they  respectively  claimed  under 
judgments  against  him.  All  objections  to  the  form  of  suit  were 
waived  ;  and  the  plaintiff  claimed  $-11  of  those  proceeds  (which  sum, 
it  is  agreed,  is  in  the  defendant's  hands),  as  so  much  money  had  and 
received  by  the  defendant  to  his  use.  The  cause  was  tried  on  the 
(Sth  of  March  1828.  On  the  trial,  the  plaintiff  gave  in  evidence  the 
record  of  an  action  to  December  term  1818,  in  the  Common  Pleas 
of  Fayette  county,  between  Maurice  and  William  Wurtx,  plaintiffs, 
and  the  said  Stewart  II.  Whitehill.  defendant,  in  which  the  former 
had  obtained  a  judgment  on  the  10th  of  January  181!*,  for  £f>i'8.78, 
and  had  afterwards  transferred  it  to  the  plaintiff,  Meredith,  a  pluries 
fieri  facias  thereon  to  March  term.  1820,  which  was  returned  "  levied 
on  lifty  acres  of  land,  &c.,  inquisition  held  and  extended." 

The  defendant  then  gave  in  evidence  the  inquisition  of  extension 
on  the  said  last-mentioned  writ,  and  a  liberari  facias  thereon  to 
March  term  1821,  with  the  inquisition  attached. 


496  SUPREME  COURT  [Pittsburgh 

[Meredith  r.  Shewall.] 

The  plaintiff  then  offered  Daniel  P.  Lynch,  former  sheriff,  to  prove 
that  the  words,  "  Proceedings  stayed  by  plaintiff's  attorney,"  which 
had  been  endorsed  on  the  writ  of  liberari  facias,  signed  Daniel  P. 
Lynch,  and  which  were  struck  out  or  erased,  by  a  line  run  through 
them,  though  they  were  still  legible,  were  his  return  to  that  writ; 
and  that  those  words  were  not  struck  out  by  him  ;  and  to  prove  also, 
that  there  was  no  actual  delivery  of  the  property  specified  in  the 
liberari  facias  to  Maurice  and  William  Wurtz. 

This  being  objected  to  by  the  defendant's  counsel,  the  offer  was 
overruled  by  the  court,  and  a  bill  of  exceptions  sealed. 

The  sole  question  before  us  is,  whether  the  sheriff  was  a^  compe* 
tent  witness  to  prove  that  his  return  to  the  liberari  facias  had  not 
been  erased  by  himself,  and  that  he  did  not  in  fact,  deliver  the  pos- 
session of  the  land. 

We  think  he  was  a  competent  witness  for  these  purposes,  and 
ought  to  have  been  received. 

The  general  rule  undoubtedly  is,  that  a  sheriff  cannot  be  admitted 
to  contradict  his  return  ;  as  to  himself,  it  is  conclusive ;  but  it  is 
not,  under  all  circumstances,  conclusive  as  to  others.  But  in  regard 
to  the  first  branch  of  the  offer,  Daniel  P.  Lynch  was  not  called 
to  contradict,  he  was  called  to  -support,  the  return  which  he  had 
made. 

He  had,  in  pursuance  of  his  duty,  endorsed  it  on  the  writ,  which 
he  delivered  into  court,  and  which,  when  shown,  exhibited  it  erased ; 
and  he  was  brought  forward  to  testify  that  he  did  not  erase  or  strike 
it  out.  Certainly  nothing  can  be  plainer  than  that  in  proving  this, 
he  would  not  impugn  the  record  of  his  Official  act,  but  maintain  it. 
It  would  lead  to  the  most  mischievous  consequences,  if  courts  were 
precluded  from  all  inquiry  relative  to  matters  of  this  description. 
In  Hill  et  ux.  v.  Wigget,  2  Vern.  547,  an  entry  in  the  steward's 
book,  and  parol  proof  by  the  foreman  of  the  jury,  were  received  as 
good  evidence,  that  a  feme  covert  surrendered  her  whole  estate, 
although  the  surrender  upon  the  roll,  and  the  admission  thereon, 
were  but  of  a  moiety. 

In  the  present  ca.se  it  was  evidently  proper  for  the  court  and  jury 
to  know  the  truth  of  this  transaction.  If  the  sheriff  did  not  alter 
his  return,  who  did  ?  Was  it  done  with  the  consent  of  the  parties, 
fraudulently  or  otherwise  ?  That  the  sheriff  did  not  alter  it,  was 
the  first  step  in  the  investigation  :  and  who  so  likely  or  proper  to 
prove  that  negative  fact  as  the  sheriff  himself?  The  circumstance 
of  the  erasure  alone,  apparent  upon  the  production  of  the  writ,  was 
sufficient  to  authorize  an  inquiry  into  the  fact,  in  order  to  ascertain 
when,  by  whom,  and  wherefore  it  had  been  made.  The  object  of 
the  offer  was  to  restore  to  the  proceedings  what  had  been  improperly 
obliterated,  and  it  would  indeed  be  a  singular  way  of  protecting 
records,  to  shut  out  the  most  direct  means  of  proving  their  viola- 
tion. It  is  clear,  then,  that  the  sheriff  should  have  been  admitted 


Sept.  1829.]  OF  PENNSYLVANIA.  497 

[Meredith  v.  Shewall.j 

to  prove,  that  he  had  made  his  return  as  it  originally  stood  in  the 
endorsement  o.n  the  writ,  and  that  he  did  not  erase  or  alter  it. 
There  is  nothing  in  the  inquisition,  which,  in  our  opinion,  fortifies 
the  objection  to  this  part  of  the  offer,  because  after  the  inquest  had 
discharged  their  appropriate  functions,  the  sheriff  might,  without 
repugnance  or  inconsistence,  have  stayed  further  proceedings,  by 
order  of  the  plaintiff,  as  will  be  explained  in  considering  the  residue 
of  the  offer.  This  was  to  pro/e  by  the  sheriff,  that  he  did  not  in 
fact,  deliver  the  land  mentioned  in  the  liberari  facias  to  Maurice  ami 
William  Wurtz.  It  is  said  that  this  was  properly  rejected,  because 
the  sheriff  returned  in  the  body  of  the  inquisition,  that  he  had  deliv- 
ered the  land  to  the  plaintiffs,  and  it  is  contended  that  although  he 
did  not  actually  deliver  it  to  them,  or  ever  paid  or  satisfied  their 
judgment  (the  oldest  lien),  yet  they  are  concluded  by  such  return, 
which  operates  as  a  discharge  of  their  judgment.  As  I  have  said 
before,  the  conclusive  effect  of  a  regular  return  of  the  sheriff,  is  not 
to  be  disputed.  It  is  in  general  of  so  high  regard,  that  no  aver- 
ment should  be  admitted  against  it.  But  even  when  regular,  it  is 
not  to  be  extended  beyond  its  reasonable  intendinent,  to  prejudice 
the  interests  of  parties.  Where  a  sheriff  returns  "  goods  levied," 
without  any  specification,  the  plaintiff  is  not  precluded,  nor  those 
claiming  under  him,  from  showing  that  he  was  not  satisfied  :  5  Binn. 
20G.  And  when  a  return  is  irregular  and  illegal,  it  may  be  inquired 
into  and  impugned.  In  Weidman  r.  Weitzel,  13  S.  &  R.  I'O,  a 
sheriff's  return  to  a  fieri  facias  of  "  debt  and  costs  paid,"  made  two 
years  out  of  time,  and  less  than  a  year  after  the  commencement  of 
the  suit  in  which  it  was  given  in  evidence,  was  held  to  be  unworthy 
the  name  of  a  regular  return,  by  which  the  plaintiff  should  be  con- 
cluded. So  in  a  case  between  Pennock's  Executor  and  Griffith  and 
George  Carr,  1  Rawle  4:20,  it  was  decided  at  the  last  term  at  Snn- 
bury,  by  this  court,  that  a  return  of  nulla  bona  to  fieri  facias,  which 
had  been  retained  in  the  sheriff's  hands,  for  six  years,  was  not  con- 
clusive ;  that  the  purchaser  of  the  defendant's  property,  might  show 
that  the  plaintiff  in  the  fieri  facias  had  been  satisfied  ;  and  the  sher- 
iff himself  was  examined  touching  the  facts.  See  also  1  M.  \  Selw. 
5(J9 ;  1)  Johns.  R.  1)0.  Here,  in  the  principal  case,  the  alleged 
return  of  the  sheriff,  with  regard  to  the  delivery  of  the  land,  is  con- 
tained in  the  inquisition  under  the  liberari  facias  ;  ami  before  he 
could  deliver  the  land  to  the  plaintiffs,  a  proper  inquisition  was 
necessary  under  this  writ.  The  office  of  this  inquisition  is  distinct 
from  that  under  the  fieri  facias :  it  is  to  ascertain  the  value  of  the 
land,  and  the  clear  yearly  rents  and  profits  beyond  all  reprises,  and 
the  number  of  years  within  seven,  that  will  be  necessary  to  satisfy 
the  debt,  damages  and  costs;  according  to  which  the  sheriff  must 
deliver  possession,  and  return  his  writ  with  the  inquisition  annexed. 
This  inquisition  does  more  than  perform  its  legitimate  functions,  it 
states  that  the  sheriff  and  inquest  had  caused  to  be  delivered  to 
1  P.  &  W.— 32 


498  SUPREME  COURT  [Pittsburgh 

[Meredith  v.  Shewall.] 

Maurice  and  William  Wurtz  the  property  extended  "  until  the  debt 
and  damages  in  the  same  writ  mentioned,  together  with  the  interest 
thereof,  be  fully  levied  ;"  whereas  the  inquest  under  a  liberari  facias 
can  only  determine  the  value  of  the  land,  the  yearly  rents  and  pro- 
fits, and  the  term  during  which  it  shall  be  extended.  The  jury  have 
nothing  to  do  with  the  delivery  of  the  land,  that  is  the  executive 
duty  of  the  sheriff  alone.  So,  it  was  said  in  Sparron  and  Matter- 
sock  et  al.,  Cro.  Car.  319,  were  all  the  precedents.  It  is  evident, 
then,  that  the  act  of  delivering  the  land  must  follow  the  inquisition 
even  if  regularly  taken  under  the  liberari  facias  ;  the  proceedings 
may  well  be  stayed  subsequently  to  the  inquisition,  and  before  actual 
delivery  ;  and  the  sheriff  may  return  the  order  to  stay  them,  as  his 
reason  for  not  delivering  pursuant  to  the  exigency  of  the  writ.  The 
plaintiff  proposed  to  show  that  the  proceedings  were  stayed,  that  the 
land  was  not  actually  delivered,  and  that  his  judgment  was  not  sat- 
isfied, The  answer  was,  that  though  the  proceedings  were  stayed, 
though  the  land  was  not  delivered,  and  though  his  judgment  was 
not  satisfied  in  point  of  fact,  yet  the  return  in  the  inquisition  pre- 
cluded him  from  showing  the  fact,  because  that  return  was  conclu- 
sive. It  is  apparent,  however,  that  the  irregularity  and  illegality 
of  that  proceeding  are  such  as  to  deprive  it  of  all  pretensions  to  legal 
sanctity,  and  to  remove  any  impediment  which  a  regular  and  legal 
return  might  have  presented  to  the  admission  of  the  offered  testi- 
mony. The  alleged  return  is  indeed  nothing  more  than  the  inqui- 
sition of  the  sheriff  and  jury,  and  when  no  actual  delivery  of  the 
land  was  made,  it  would  be  most  strange,  if  the  inquisition,  which 
regularly  and  legally  precludes  the  delivery  by  the  sheriff,  should 
be  held  to  preclude  the  proof  relative  to  that  subsequent  fact,  when 
it  was  offered  to  show,  by  the  sheriff  himself,  that  he  did  not  actu- 
ally deliver  the  land.  The  plaintiff  should  have  been  permitted  to 
prove  what  he  proposed,  and  in  rejecting  the  offer  under  consider- 
ation, the  court  below  erred. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 

Referred  to,  8  Smith  208. 

Commented  on  and  doubted,  2  Wh.  471. 


Sept.  1829.]  OF  PENNSYLVANIA.  409 


McCoy  et  ux.  against  Turk. 


The  treasurers  of  the  respective  counties,  are  the  proper  persons  to  wake 
sale  of  unseated  lands  to  pay  the  arrearages  of  taxes,  and  the  Act  of  the  Kith 
March  1815,  which  jfives  them  this  authority,  alters  and  supplies  so  much  of 
the  Act  of  the  3d  of  April  1804,  as  required  a  warrant  from  the  commissioners 
of  the  county,  to  issue  to  the  sheriff  or  coroner,  in  case  of  a  sale  as  uforoaiu. 

ERROR  to  the  Court  of  Common  Pleas  of  Ilutler  county. 

This  was  an  ejectment  brought  in  the  court  below,  by  McCoy  and 
wife,  against  Ephraim  Turk,  to  recover  a  tract  of  two  hundred  acres 
of  land,  in  the  first  donation  district  of  Butler  county,  No.  200. 

'It  was  admitted  on  the  trial,  that  there  was  a  patent  to  Thomas 
Tull  for  the  tract  of  land  for  which  the  ejectment  was  brought,  and 
also,  that  Mary  McCoy  was  his  sole  heir. 

The  defendant  then  gave  in  evidence,  first,  the  duplicate  of  the 
assessment  for  Muddy  Creek  township,  for  the  year  1810-17. 

Then  the  return  of  the  supervisors  of  the  said  township,  for  the 
year  1816-17,  to  the  commissioners  of  Butler  county. 

The  deed  from  the  treasurer  of  Butler  county,  dated  13th  August 
1818,  for  the  tract  of  land  in  question,  under  which  the  defendant 
claimed,  was  then  offered  in  evidence  and  objected  to,  which  objec- 
tion was  overruled,  and  the  deed  read  in  evidence. 

The  jury  found  for  the  defendant,  and  this  writ  of  error  was  taken. 

Bredin,  for  the  plaintiff  in  error. — The  court  below  erred  in  the 
admission  of  the  treasurer's  deed. 

1st.  Because  the  treasurer  of  Butler  county  commenced  his  sales 
of  unseated  lands  in  the  year  1818,  and  before  two  years  had  elapsed 
from  the  commencement  of  the  sales  in  1810,  or  the  time  fixed  by 
law  for  the  sales  in  1816. 

2d.  That  no  warrant  had  been  issued  by  the  commissioners  to 
the  treasurer,  commanding  him  to  sell  the  unseated  lands  in  said 
county. 

Two  other  errors  were  assigned  and  afterwards  abandoned. 

Ayres,  for  defendant  in  error. 

The  opinion  of  the  court  was  delivered  by 

ROGERS,  J. — Two  objections  have  been  made  to  the  admission  of 
the  treasurer's  deed  in  evidence.  That  the  treasurer  commenced 
his  sales  of  unseated  lands  in  1818,  and  before  two  years  had  elapsed 
from  the  commencement  of  the  sale  in  181(5.  And  that  n<»  warrant 
had  been  issued  by  the  commissioners  to  the  treasurer,  commanding 
him  to  sell  the  unseated  lands. 


500  SUPREME  COURT  [Pittsburgh 

[McCoy  r.  Turk.] 

The  first  question  has  been  already  disposed  of  in  Hyner  v.  Cor- 
yell,  decided  at  the  last  term  in  Sunbury,  and  not  yet  reported. 

In  the  second  section  of  the  Act  of  the  3d  April  1804,  the  com- 
missioners of  the  county  are  directed  to  issue  their  warrants,  under 
their  hands  and  seals  of  office,  directed  to  the  sheriff  or  coroner, 
commanding  him  to  make  public  sale  of  the  whole,  or  any  part  of 
such  tracts  of  unseated  land,  as  he  may  find  necessary  for  the  pay- 
ment of  taxes. 

The  Act  of  the  13th  March  1815,  which  repels  so  much  of  the 
Act  of  the  3d  April  1804,  as  it  alters  and  supplies,  devolves  these 
duties  on  the  treasurer.  The  first  section  enacts  that  the  treasurers 
in  the  respective  counties,  &c.,  shall  be,  and  they  are  hereby  re- 
spectively authorized  and  directed  to  commence  on  the  second  Mon- 
day in  June,  in  the  year  1816,  and  at  the  expiration  of  every  two 
years  thereafter,  &c.,  to  make  public  sale  of  the  whole  or  part,  &c., 
as  will  pay  the  arrearages  of  taxes.  It  would  seem  to  be  the  inten- 
tion of  the  legislature  by  this  enactment,  to  simplify  the  process  of 
sale ;  for  that,  which  under  the  Act  of  1804,  was  the  duty  of  the 
commissioners,  and  the  sheriff  or  coroner,  is  authorized  and  directed 
to  be  done  by  the  treasurer  alone.  A  warrant  from  the  commis- 
sioners which  was  before  in  terms  required,  has  been  dispensed  with. 
The  treasurer  derives  his  powers  from  the  act  itself,  which  is  his  war- 
rant, commanding  him,  without  the  intervention  of  any  other  author- 
ity to  sell,  and  fixing  the  times  of  sale  biennially ;  commencing  the 
second  Monday  of  June  1816.  And  from  this  construction,  no  in- 
convenience can  result,  as  the  treasurer  possesses  all  the  information 
necessary  for  the  proper  discharge  of  the  duties  imposed  upon  him, 
and  must  be  supposed  to  be  perfectly  acquainted  with  the  whole  fis- 
cal concerns  of  the  county.  The  Act  of  the  13th  March  1815,  in 
which  respect  it  alters  and  supplies  the  Act  of  1804,  vests  the  trea- 
surer with  the  control  of  the  whole  process  for  the  sale  of  unseated 
lands  for  payment  of  taxes,  and  we  are  not  to  suppose  that  the  pow- 
ers conferred  upon  him  will  be  abused  for  purposes  of  private  gain. 

The  first  two  errors  having  been  properly  abandoned,  it  is  the 
opinion  of  the  court  that  the  judgment  be  affirmed. 

Judgment  affirmed. 


Sept.  1829.]  OF  PENNSYLVANIA.  f>01 


Little  et  ux.  against  Hodge  et  al. 

IN    ERROR. 

The  mode  of  appropriating  donations  in  land  to  the  officers  and  (soldiers 
of  the  Pennsylvania  line,  in  the  Revolution,  adopted  after  the  war. 

The  officers  of  the  government,  intrusted  with  the  appropriation  of  dona- 
tion land,  could  at  no  time  give  a  patent  to  an  applicant  for  any  tract  he 
might  ask. 

A  patent  for  a  tract  of  donation  land  is  void,  unless  given  after  drawing, 
and  for  the  number  drawn. 

If  one  man  draw  a  number,  and  a  patent  for  the  land  designated  by  that 
number  were  issued  to  another  man,  such  patent  would  be  void  ;  and  the  man 
who  drew  the  number  would  be  entitled  to  the  land. 

Where  any  officer  or  soldier  once  drew  a  number,  in  no  event  could  he,  or 
any  one  in  his  name  or  right  afterwards  draw  another  tract. 

Independent  of  any  other  evidence,  a  patent  for  donation  land  would  be 
presumptive  evidence  that  the  patentee  had  drawn  the  number  for  which  such 
patent  had  issued  to  him;  although  his  name  did  not  appear  in  the  control- 
ler's list,  or  on  the  general  draft. 

But  such  presumption  would  not  prevail  where  his  name  did  appear  in 
another  number  and  a  patent  had  issued  to  him  for  that  number,  and  where 
the  number  for  which  his  patent  issued,  without  having  his  name  in  it,  was 
subsequently  drawn  from  the  wheel  in  the  name  of  another. 

WHIT  of  error  to  the  Court  of  Common  Pleas  of  Mercer  county. 

The  action  was  ejectment  to  recover  a  tract  of  donation  land,  con- 
taining two  hundred  acres.  No.  763,  in  district  number  4.  The 
plaintiff  made  title  through  Robert  Parker,  a  lieutenant  in  the  Penn- 
sylvania line,  and  exhibited  a  patent  to  him  for  lot  No.  763,  4th  dis- 
trict, dated  the  28th  day  of  February  1704,  the  general  draft  of  that 
district,  in  which  his  name  appeared  in  that  number,  and  also  the 
controller's  list,  in  which  No.  763,  in  the  4th  district,  is  set  down 
opposite  to  his  name  as  having  been  drawn  by  him. 

The  defendants  rested  their  title  on  a  patent  to  Ilinderliter,  as- 
signee of  John  Whiteman,  for  lot  No.  763,  in  the  4th  district  (being 
the  same  lot),  dated  the  12th  day  of  September  1700.  To  defeat 
which,  the  plaintiff  gave  in  evidence  the  following  extract  from  the 
general  draft  of  donation  land  in  district  number  0. 


No.  1778. 


No.  17S6. 

No.  177; 


John  Whiteman,  No.  1776. 


No.  1771. 


They  also  gave  in  evidence  a  certified  extract  from  the  controller's 
list,  in  which  the  name  of  John  Whiteman,  private,  was  inserted. 


502  SUPREME  COURT  [Pittsburgh 

[Little  v.  Hodge.] 

and  opposite  to  it  two  hundred  acres,  No.  1776,  9th  district,  and 
that  this  was  the  only  entry  on  the  said  list  in  the  name  of  John 
Whiteman. 

They  also  gave  in  evidence  a  patent  to  John  Whiteman  for  lot 
No.  1776,  9th  district,  dated  18th  April  1787. 

The  plaintiff's  counsel  requested  the  court  to  charge  the  jury : 

"  1st.  That  if  the  patent  for  the  tract  of  land  in  dispute  was 
made  and  delivered  to  Hinderliter,  as  assignee  of  Whiteman,  it 
would  vest  no  title  in  him,  unless  the  number  of  this  tract  had  been 
drawn  from  the  wheel  previously  to  either  Whiteman  or  Hinderliter, 
and  that  of  this  fact  the  jury  must  judge  from  the  evidence  given 
on  the  trial. 

"  2d.  That  the  patent  to  Hinderliter,  which  had  been  given  in 
evidence,  unless  the  name  of  Hinderliter  or  Whiteman  was  inserted 
in  the  general  draft,  and  within  the  lot,  must  be  postponed  to  the 
patent  of  the  plaintiff;  if  the  jury  believe  the  name  of  Robert  Par- 
ker was  inserted  in  the  general  draft,  and  within  the  lot  at  the  time 
it  was  drawn." 

The  court  charged  the  jury  on  the  first  point,  that  "  the  granting 
of  the  patent  is  evidence  of  the  drawing  of  the  numbers."  And  on 
the  second  point,  that,  "  this  omission  by  the  officers  of  the  state, 
would  not  vitiate  a  patent,  if  otherwise  fairly  obtained." 

Several  errors  were  assigned,  which  are  substantially  embraced  in 
the  points  above  stated,  and  the  answers  of  the  court  thereto. 

Foster,  of  Mercer,  for  the  plaintiff  in  error,  argued,  that  there 
was  a  difference  between  a  patent  granted  by  the  states,  and  the 
king  of  England.  The  former  gives  no  title,  but  is  prima  facie  evi- 
dence of  title ;  the  latter  vests  title  until  it  is  vacated.  The  one 
can  always  be  contested  by  any  other  claimant  to  the  land,  the  other 
cannot :  2  Sm.  L.  191.  He  cited  the  12th,  13th  and  14th  sections 
of  the  Act  of  1785,  2  Sm.  L.,  in  relation  to  donation  lands.  The 
evidence  given  negatived  the  idea  of  regularity  in  the  first  grant. 
A  patent  is  only  prima  facie  evidence  of  a  regular  title.  It  may  be 
obtained  by  fraud,  or  issued  by  mistake  ;  it  is  not  conclusive :  Bix- 
ler  v.  Baker,  4  Binn.  218. 

The  first  patent  was  issued  without  observing  the  requirements  of 
the  Act  of  Assembly,  and  must  be  postponed  to  the  subsequent 
regular  title.  The  assignee  of  a  patent  is  in  no  better  equity  than 
the  assignor :  Gonzalus  v.  Hoover,  6  S.  &  R.  118. 

The  court  did  not  answer  the  points  fully  ;  they  did  not  tell  the 
jury  what  the  law  would  be,  if  the  number  in  the  patent  had  never 
been  drawn  :  Vincent  v .  Huff,  4  S.  &  II.  298.  The  court  took  the 
fact  from  the  jury. 

The  patent  to  Hinderliter  was  but  prima  facie  evidence  of  the 
facts  recited ;  and  the  presumption  of  regularity  is  removed  by 
proof  that  it  had  not  issued  according  to  law. 


Sept.  1820.]  OF  PENNSYLVANIA.  503 

[Little  v.  Hodge.] 

It  is  the  appropriation  of  the  land  by  the  legislature,  and  not  the 
patent,  which  gives  the  title. 

The  entry  of  the  name  in  the  general  draft  is  made  a  record,  in 
lieu  of  recording  the  patent. 

Of  Ilinderliter's  patent  there  was  no  notice  to  Parker  when  he 
drew,  in  17(J4,  this  number ;  arid  the  former  is  guilty  of  that  sort 
of  laches  which  should  postpone  his  claim. 

Moore  and  Ayres,  contra. — The  patent  is  evidence  per  se  until 
invalidated  by  conflicting  evidence.  Fraud  is  not  to  be  presumed. 

The  patent  could  not  have  issued,  unless  the  number  which  it 
calls  for  had  been  drawn ;  and  so  is  the  charge  of  the  court.  And 
if  the  number  had  been  drawn,  the  omission  on  the  part  of  the  offi- 
cers intrusted  with  the  duty  to  insert  the  name  in  the  number  in 
the  general  draft,  and  the  number  opposite  to  the  name  on  the  con- 
troller's list,  would  not  vitiate  the  patent.  The  mistake  of  the  officers 
could  riot  affect  the  title,  and  therefore  the  first  patent  must  prevail. 
No  fraud  was  proved,  and  besides,  the  finding  of  the  jury  proves 
that  Whitman  and  Whiteman  were  different  persons. 

The  law  does  not  say  that  the  connected  draft  shall  be  a  record. 

These  drawings  for  donation  lands  commenced  in  171>4,  and  con- 
tinued till  1804.  If  the  plaintiff's  draft  had  been  antecedent  to 
the  defendant's  patent,  there  might  be  some  weight  in  their  claim, 
but  we  arc  first  in  time,  and  therefore  first  in  right. 

The  court  declined  hearing  Banks,  for  the  plaintiff  in  error,  in 
reply. 

The  opinion  of  the  court  was  delivered  by 

HUSTON,  J. — During  the  war  of  the  Revolution,  our  legislature 
promised  donations  in  land  to  the  officers  and  soldiers  of  our  army ; 
and  after  the  war,  measures  were  taken  to  survey  the  lands,  and  very 
particular  direction  given  as  to  the  mode  of  appropriating  a  tract  to 
each  soldier,  in  such  manner  that  each  might  have  the  proper  quan- 
tity, and  no  more,  and  might  be  able  to  ascertain  with  certainty  the 
tract  allotted  to  him.  After  the  lands  were  all  surveyed,  and  num- 
bered, a  general  draft  or  drafts  made,  in  which  the  number  was  in- 
serted in  each  tract,  a  list  of  officers  and  soldiers  entitled  to  lands 
made,  see  sect.  1>,  of  the  Act  of  -4th  March  ITS"),  and  after  evrry 
thing  was  prepared,  a  number  was  drawn  for  each. 

The  number  drawn  was  put  in  a  column  annexed  to  the  list,  op- 
posite the  name  of  the  person  for  whom  it  was  drawn,  and  the  name 
of  the  person,  who  drew  a  particular  number,  was  inserted  in  that 
number  in  the  general  draft.  This  general  draft  was  to  be  kept  by 
the  executive  council  until  all  applications  were  satisfied,  and  then 
to  be  deposited  in  the  office  of  the  master  of  the  rolls,  as  a  public 
record  to  serve  to  all  intents  and  purposes  in  lieu  of  recording  the 


504  SUPREME  COURT  [Pittoburg 

[Little  v.  Hodge.] 

patent ;  when  the  persons  intrusted,  who,  under  the  old  Constitu- 
tion were  three  of  the  members  of  the  executive  council,  closed  the 
drawing  at  any  time,  the  wheels  were  closed,  in  their  presence,  and 
sealed  ;  and  so  continued  deposited  carefully  and  safely,  until  further 
drawing  was  required.  It  was  then  not  easy  after  a  name  had  once 
drawn  a  number,  to  return  that  number  into  the  wheel.  When  a 
name  had  drawn  a  particular  number,  not  only  was  the  number  set 
down  opposite  the  name,  but  also  the  name  was  inserted  in  that  num- 
ber in  the  general  draft,  and  a  report  was  made  of  the  name  which 
drew,  and  of  the  number  drawn,  to  the  president,  or  vice-president, 
who  caused  a  patent  to  be  made  out,  &c. 

Notwithstanding  all  these  precautions  it  seems  mistake  or  fraud 
has  occasioned  two  patents  to  issue  for  the  same  tract ;  and  we  are 
to  decide  which  is  entitled  to  the  land. 

The  officers  intrusted  could  at  no  time  proceed  to  give  a  patent 
to  an  applicant,  for  any  tract  he  might  ask.  The  law  was  imper- 
ative, he  must  take  an  equal  chance,  every  one  must  draw,  and  he 
could  not  have  the  tract  which  he  wished,  or  which  the  officers 
wished  to  give  him  ;  a  patent  would  be,  and  is  void,  unless  given 
after  drawing,  and  for  the  number  drawn.  This  matter  was  sub- 
mitted to  the  court,  and  overlooked  in  the  opinion. 

What  was  done  in  the  present  case  ?  We  have  evidence  that  only 
one  person  of  the  name  of  John  Whiteman  was  in  the  controller's 
list. 

There  is  evidence  that  John  Whiternan  drew  number  1776,  in 
the  Oth  district,  in  the  year  1787,  and  on  the  18th  of  April  1787,  a 
patent  issued  for  this  tract,  number  1776,  in  the  9th  district,  to  John 
Whiteman. 

Either  this  patent  issued  to  the  same  man  (his  name  being  spelled 
slightly  different),  who  drew  number  177G,  or  to  a  different  man, 
if  to  the  same  man,  he  has  that  tract,  and  is  entitled  to  no  more, 
and  any  claim  he  makes,  or  which  any  one  under  him  makes  to  any 
other  tract,  must  be  a  claim  founded  in  dishonesty  and  fraud.  If 
the  patent  issued  to  a  man  different  from  him  who  drew  number 
1776,  that  is,  if  John  Whiteman,  who  got  the  patent,  was  a  different 
man  from  him  who  drew  number  1776,  then  the  patent  for  that  num- 
ber is  void,  and  John  Whiteman  is  yet  entitled  to  number  1776,  and 
to  a  patent  for  it ;  but  if  there  is  but  one  John  Whiteman,  and  he 
drew  number  177G,  in  1787,  in  no  event  can  he  draw  another  tract 
afterwards,  nor  can  any  one  in  his  name  or  right  obtain  a  patent 
for  another  tract. 

It  is  true,  that  independent  of  any  other  evidence,  a  patent  would 
be  presumptive  evidence,  that  the  patentee  had  drawn  the  number 
for  which  a  patent  issued  to  him  ;  and  we  might  suppose  his  name 
had  not  been  inserted  in  the  list  of  those  who  drew,  or  that  the  num- 
ber drawn  had  through  mistake  or  neglect,  not  been  set  opposite 
his  name ;  and  further,  that  from  another  mistake  or  neglect,  his 


Sept.  1820.]  OF  PENNSYLVANIA.  50/i 

[Little  ».  Hodge.] 

name  had  not  been  inserted  in  the  general  draft,  in  the  tract  which 
he  drew,  and  it  would  be  a  great  deal  to  suppose  all  this,  but  here 
we  are  asked  to  do  much  more ;  to  throw  away  the  evidence  that  he 
drew  number  1776,  and  to  suppose,  without  evidence,  that  his  as- 
signee drew  number  763,  in  1791 ;  and  further  that  after 'he  drew 
it,  and  after  neglecting  to  insert  his  name  in  that  number,  in  the 
general  draft,  and  set  that  number  opposite  his  name  in  the  con- 
troller's list,  we  must  suppose  the  officers  put  number  763  back  into 
the  wheel,  wickedly  and  corruptly  ;  for  that  number  was  found  in 
the  wheel  in  171*4,  when  it  was  drawn  out  by  Robert  Parker. 

I  can  appreciate  the  feelings  of  the  judge,  and  his  sympathy  for 
the  defendant,  who  has  unfortunately  purchased  under  &  fraudulent 
patent,  and  spent  time  arid  labor  in  improving  the  land  ;  but  a  little 
reflection  will  show  us  that  he  must  bear  his  own  loss,  or  obtain 
compensation  from  Ilinderliter. 

It  never  can  be,  that  the  owner  of  a  tract  of  land  must  lose  it, 
because  a  title  to  it  has  been  forged,  and  by  that  forgery  an  innocent 
person  has  been  imposed  on.  If  any  person  is  to  apply  to  the  state 
for  redress,  it  must  be  the  defendant. 

The  officers  of  the  state  have  done  an  act  which  has  injured  him. 
The  plaintiff's  right  is  regular  and  complete;  and  courts  and  juries 
will  see  that  such  a  right  is  not  to  be  given  away  from  pity. 

Judgment  reversed,  arid  a  venire  facias  de  nova  awarded. 


INDEX. 


Abandonment,  450,  454. 

presumption  of,  454. 
Abatement  of  suit,   117, 

plea  in,  442. 

Account,  administration,  401. 
settlement  of,  401. 
guardianship,  282. 
public,  52,  252. 
Account  render,  135. 
Acknowledgment,  135,  402. 
Acquiescence,  399. 
Action,  form  of,  96. 

amicable,  188,  229,  333. 

when  it  accrues.  140,  419. 

of  partition,  461. 

right  of,  85,  262.  442. 

for  money  had  and  received, 

492. 

against  several,  285. 
popular,  442. 
cause  of,  383. 
for  malicious  suit,  232. 
when  supported,  232. 
Actual  settlement,  439. 
Ademption,  126. 
Administration,  161. 
account,  401. 
Administrator,  444. 

payment  by,  188. 
suit  by,  412. 
liability  of,  188. 
sale  by,  83,  96. 
de  bonis  non,  161. 
Adversary  process,  333. 
Advertisement,  426. 
Affidavit,  421,  481. 
Agency,  375. 

proof  of,  333. 
Agent,  333,  375. 

authority  of,  375. 
pavment  by,  375. 
Agreement,  2S5,  426,  474,  492. 
to  forbear,  .'.83, 
extinguished,  417. 
rescission  of,  140. 
purol,  257,  484. 
of  a  plaintiff.  240. 
extinguished,  417. 


Alienation,  450. 

Appeal,  9,  21,  23,  T4,  115,  207,  227, 
252,  293,  322,  481,  487. 

quashed,  227. 
Application,  451. 
Appraisement,  188,  371. 
Appropriation,  44,  227. 
Approval,  462. 
Appurtenance,  402. 
Arbitration,  412. 

act,  293. 
Assets,  administration  of,  161. 

to  pay  legacies,  422. 
Assignee,  24,  220,  25'J.  373,  395,476, 

484. 

Assignment,  24,  220,  259.  373,  395, 
476,  4S4. 

voluntary,  198. 
Assistant  deputy-surveyor,  1. 
Assumpsit,  action  of,  II. 
Attachment,  plea  of,  442. 
Attorney-at-law,  264.  421,  454,  481. 

in-fact.  333.  444. 
Auditor-general,  52. 
Authority,  color  of,  297. 

proof  of,  333. 
Award,  285.  364. 

not  final,  364. 
Bail,  9,  395,  425. 

holding  to,  232. 

additional,  293. 

absolute,  425. 

on  appeal,  293. 

dispensed  with,  293. 

special,  148. 
Bill  of  exception,  364. 
Bond,  280. 

assignment  of,  257. 

condition  of,  460. 

insolvent,  262.  437. 

administration,  419. 

judgment.  245.  460. 

official,  .">•_'.  '.»4. 

penalty  of,  460. 
Book  entry,  412. 

production  of.  412. 

boundaries,  489. 
Calculation,  364. 

(507) 


508 


INDEX. 


Canal  4(12. 

Capacity,  to  take,  49. 

Capias  ail  reapondendum,  232. 

ad  satisfaeiendum,  267. 
Certiorari,  2U7,  322. 
Cestui  que  trust,  52. 
Challenge,  32. 
Channel,  402. 
Character,  32. 
Character,  evidence  of,  297. 
Charge  of  court,  140,  389. 
Charity,  gift  to  a,  49. 
Charter,  426. 

vacated,  426. 
Check,  161. 
Choses  in  action,  373. 

of  the  wife,  373. 
Christianity,  13. 
Circuit  Court,  74,  449. 

decree  of,  207. 

appeal  to,  322. 

jurisdiction  of,  449. 

return  days  of,  322. 
Cohabitation,  4-r>0. 
Collateral  security,  216. 

inquiry,  267. 
Commission,  297. 
Commissioners,  426. 

promise  of,  426,  462. 
Commissioners'  warrant,  499. 
Common  law,  450. 
Commonwealth,  right  of,  462. 
Common  Pleas,  decree  of,  481. 
Compact,  383. 
Controllers'  list,  501. 
Condition,  breach  of,  401,  460. 
Conditional  verdict,  257. 
Confirmation,  32. 
Consent,  322,  454. 
Consideration,  220,  383,  462,  486. 

good,  220. 

valuable,  220. 

not  expressed,  486. 

failure  of,  476. 
Constable,  61. 
Construction,  legal,  383. 

of  foreign  statutes,  383. 
Consummation,  417. 
Contract,  264. 

rescission  of.  140,  492. 

nature  of,  198. 

benefit  of,  2H5. 

joint  and  several,  375. 

merged,  417. 
Contribution,  140. 
Conversion,  216. 
Conveyance,  474. 
Copy  of  record,  52.  389. 
Coroners'  sales,  227. 
Corporation,  promise  of,  42P,. 


Costs,  23.  llf>,  461,  487. 

payment  of,  399. 

not  recoverable,  46L 

taxation  of,  61. 
Counsel,  advice  of,  188. 
Counts,  joinder  of,  161. 
Court,  ecclesiastical,  13. 
Court,  temporal,  13. 

order  of,  395. 

charge  of,  140,  389. 

rules'of,  229. 
Covenant.  417. 
Credits,  364. 
Creditors,  57. 

joint,  198. 

separate,  198. 

execution,  198. 

lien,  240. 
Crop,  way-going,  224. 

when  put  in,  224. 
Damages,  462. 

nominal,  401 
Date  of  entry,  271. 
Debts,  of  intestate,  447. 

lien  of,  152. 

simple  contract,  216. 

specialty,  447. 

partnership,  198. 
Decision,  306. 

publication  of,  188. 
Declarations  of  grantor,  32. 

of  testator,  126. 

of  third  persons,  426 
Decree,  95,  227,  267,  481. 

partial,  227. 

final,  227. 

conclusive,  267. 
Deed,  32,  417,  486. 

absolute,  333. 

in  trust,  389. 

by  a  partner,  285. 

date  of,  402. 

of  sheriff,  402. 

delivery  of,  32. 

acknowledgment  of,  402,  484. 

execution  of,  32. 

of  defeasance,  333 
Default,  judgment  by,  229.- 
Defeasance,  333. 

Defence,  24,  152.  232,  245,  252,  257, 
417,  437,  476,  481. 

one,  conclusive,  152. 

collateral,  232. 

equitable,  257. 

Delivery,  evidence  of,  32,  402. 
Demurrer,  480. 

Deposition,  1,  297.  306,  454,  485. 
Depreciation  districts,  489. 
Derelict,  title,  74. 
Description,  232. 


INDEX. 


509 


Desertion,  449. 

Devastavit,  333. 

Devise,  construction  of,  49,  83,  322. 

482. 

Devisee,  declarations  of,  30G. 
Division,  of  canal,  4G2. 
Disabilities,  6'. 
Discharge,  82,  207. 
Distribution,  280,  371,  481. 
Districts,  489. 
Docket-entry,  389. 
Donation  lands,  501. 
Draft,  general,  50 1. 
Drawing,  501. 
Ejectment,  1,  152,  264. 
Encumbrance,  198,  417. 
Endorser,  425. 
Entry,  G,  129. 

date  of,  271. 
Equity,  439. 
Equitable  assignee,  24. 

extinguishment,  474. 
Error,  32,  140,  101,  232,  243,  300,  389, 
395,401,402,425,460,  480. 

subject  of,  395. 

writ  of,  14,61,  73,74,82,  114, 

135,  229,  421. 
Escheat,  52. 
Estate,  389. 

personal,  322. 

real,  322. 

Estate,  privity  of,  439. 
Estoppel,  402. 

Evidence,  140,  252,  297,  306,  333,  389, 
444,  449,  495. 

parol,  32,  52,  126,  140,  161, 
220,  364,  389,402,417,486. 
495. 

preliminary,  216. 

prima  facie,  52,  389  402. 

immaterial,  220. 

illegal,  412. 

presumptive,  501. 

conclusive,  402. 

secondary,  426. 

of  character,  297,  412,  489. 

construction  of,  383. 

corroborating,  161. 

before  arbitrators,  412. 
Excess,  released,  21. 
Execution,  61,  293,  425,  460. 

stay  of,  240,  395. 

levied,  425. 

effect  of,  484. 

superseded,  61. 

sale  by,  198. 
Executrix,  333. 
Executor,  96,  161,  232,  422. 

duties  of,  232. 

individual  liability  of,  232,  422. 


Executor — (continued. ) 

suit  against,  422. 
Experts,  161. 
Extinguishment,  417. 

equitable,  474. 
Fees,  of  prothonotary,  207. 

of  office,  454. 
Feme  covert,  6. 

liability  of,  333. 

interest  in  land  of,  371. 

executrix,  333. 
Fieri  facias,  271,  484. 
Fiscal  year,  252. 
Forbearance,  383. 
Foreign  attachment,  117. 

statutes,  117,  383. 

construction  of.  117,  383. 

evidence  of,  117,  383. 
Forfeited  bond,  267. 
Forgery,  161. 
Forged  paper,  161. 

identity  of,  161,  267,  402. 
Fraud,  32,  267,  402,  426. 
Fraudulent,  57. 
Gift,  to  a  charity,  49. 
Grain,  growing,  471. 

fall  and  spring,  424 
Grantee,  declarations  of,  389. 
Guardians,  207. 

duty  and  liability  of,  207. 
Habeas  corpus,  82,  449. 
Handwriting,  161. 

comparison  of,  161. 

proof  of,  216. 

knowledge  of,  216. 
Highway,  462. 
Iligh-water-mark,  462. 
Husband  and  wife,  333. 

assignment  by,  373. 

in  right  of  wife,  371,  389. 

desertion  of,  449. 
Ignorance,  476. 
Imbecility,  evidence  of,  32. 
Improvements,  389,  462. 
Improvement  right,  45. 
Incorporation,  charter  of,  426. 
Indemnity,  395,  484. 
Infant,  450. 

maintenance  of,  450. 
Innocence,  450. 
Inquest,  495. 
Insanity,  32. 
Insolvent,  322. 

bond.  262,  437. 

law,  322,  373. 

trustee  of,  262,  322,  437. 

duty  of.  267. 
Inspection,  402. 
Interest,  '23,  140. 
,  Intestate,  debts  of,  447. 


510 


INDEX. 


irregularity,  229. 

when  cured,  229. 
Issue,  152,  364. 

devisavit  vel  non,  306. 

trial  of,  449. 
Joinder,  in  demurrer,  480. 

of  counts,  101. 
Joint  purchase,  140,  375. 

effects,  198. 

creditors,  198. 

commission,  198. 

contract,  375t 
Judgment,  152,  395,  400. 

quod  computet,  135. 

original,  04,  245. 

amicable,  15. 

conclusive,  152. 

irregular,  228,  245. 

interlocutory,  117,  135. 

fraudulent,  245. 

final,  73,  117. 

lien  of,  64,  129,  484. 

entry  of,  245. 

arrest  of,  383. 

assignment  of,  395. 

revival  of,  04,  245. 

by  default,  222,  229,  245,  399, 
474,  484. 

opened,  115,  481. 
Judicial  sales,  96. 

oaths,  13,  14. 
Jurisdiction,  21,  449. 
Juror,  32. 
Jury,  calculation  of,  364. 

province  of,  383,  402. 
Justice  of  the  peace,  15,  61,  297. 

commission  of,  297. 
Land,  parol  gift  of,  389. 

assets,  152. 

levied,  484. 

sale  of,  471,  492. 

conveyance  of,  471. 

charge  on,  96. 

six  per  cent,  of,  402. 

advertised,  484. 

donation.  501. 

lien  on,  484. 

depreciation,  489. 

unseated,  499. 

partnership  in,  140. 

specifically  in,  371. 
Landlord  and  tenant,  402. 
Law,  written,  383. 

unwritten,  383. 
Leading  question,  297. 
Lease,  224,  402. 
Legacy,  90,  322,  422. 

lien  of,  96. 

payment  of,  96,  422. 
Legitimacy,  450. 


Lessees,  04. 
Lessor,  402. 
Levy,  271,  425. 

Lien,  44,  04,  90,  152,  240,  271,  322, 
422,480,481,  484. 

kept  alive,  271. 

divested,  480. 

of  judgment,  129,  271,422,481. 

not  affected,  481,  484. 

creditors,  240. 
Liberari  facias,  495. 
Limitation,  210. 

statute  of,  6,  81, 135,  140,216, 

322,  442.  492. 
Line,  division,  439,  489. 

ancient,  489. 

district,  489. 
Malicious  suit,  232. 
Management,  402. 
Marriage,  450. 

evidence  of,  450. 
Merits,  defence  on,  285. 
Minutes,  short,  148. 
Misrepresentation,  402,  444. 
Mistake,  364. 

Mortgage,   44,   188,   280,  333,  402. 
480. 

assignment  of,  280. 

sale  on,  402. 

of  personal  property,  57. 

lien  of,  divested,  480. 

unrecorded,  247. 
Mortgaged  premises,  44 
Motion  to  quash,  322. 
Municipal  law,  383. 
Muniments,  60. 
Neglect,  229. 
Neighborhood,  32. 
New  trial,  392. 
Newspaper,  426. 
Nominal  damages,  401. 
Notice,  462,  470. 

reasonable.  402. 

service  of,  485. 
Nullity,  293. 
Number,  drawn,  501. 
Oath,  who  to  make,  481. 

judicial,  13,  14. 

who  to  administer,  421. 
Objections,  252,  297,  420. 

too  late,  322. 

Obligation,  relief  from,  420,  482. 
Occupation,  description  of,  93. 
Occupiers  of  land,  04. 
Office,  of  justice,  15. 

color  of,  297. 
Officer,  public,  52. 

accountant,  252. 
Officers  and  soldiers,  501. 
Official  bond,  52 


INDEX. 


oil 


Opinion  conclusive,  293. 

Order  of  the  court,  73,  395,  481. 

Orphans'  Court,  322. 

appeal  from,  322 

order  of,  83,  96. 

power  of,  282. 
Ownership,  acts  of,  GO,  74. 

indicia  of,  57. 
Papers,  inspection  of,  4()2. 
Parol  evidence,  120,  220,  417,  486. 

gift,  389. 

agreement,  257. 

gift  of  land,  389. 
Partition,  371. 

action  of,  401. 

costs  in,  471. 
Partner,  powers  of,  285. 

payment  by,  375. 

remedies  of,  140,  198. 

responsibilities  of,  140. 

interest  of,  198. 

equity  of,  198. 
Partnership,  135,  140,  198. 

debts,  198. 

effects,  198,  375. 

sale  of,  198. 
Party,  421,  481. 

how  made,  96. 
Patent,  81,  417,  501. 
Patenting  money,  188. 
Pawn,  redemption  of,  210. 
Payment,  220,  240,  375. 

presumption  of,  322. 

plea  of,  480. 
Penalty,  460. 
Perjury,  14. 
Personal  property,  57,  471. 

appropriation  of,  188. 
Petitioners  for  review,  243. 
Plea  iu  bar,  442. 

non  est  factum,  285. 

special,  442. 

in  abatement,  442. 

stricken  off,  285. 

of  payment,  480. 
Pleading.  152,  229. 
Pledge,  216. 
Popular  action,  442. 
Possession,  6,  373,  389. 

adverse,  6. 

of  personal  property,  57. 
Power  of  attorney.  444. 
Practice,  229,  243,  293. 
Praocipe,  for  writ  of  error,  61. 
Preference,  57,  198,  280,  447. 
Presumption,  of  satisfaction,  419. 

conllicting,  450. 
Principnl  and  surety,  395,  425. 
Privity,  395,  439. 
Probable  cause,  232. 


Process,  96. 

adversary,  333. 
Profit  and  loss,  140. 
Promise,  to  testator,  161. 

to  administrator,  161. 

proof  unnecessary,  383. 
Property,  personal,  57,  471. 
Prothonotary,  14,  2U7,  252. 

account,  252. 
Public,  highway,  402. 

purposes,  402. 
Public  officer,  52. 
Purchase,  joint,  140. 
Purchaser,  from  administrators,  83. 

from  sheriff,  402. 

from  collector  of  revenue,  54. 

from  county  treasurer,  54. 

separate,  198. 

Purchase-money,  412,  417,  474,  482. 
Quash,  motion  to,  322. 
Quo  warranto,  420. 
Question,  leading,  297. 
Quarter  Sessions,  449. 

approval  by,  462. 
Ratification,  1. 
Recital,  402. 
Recognisance,  9,  US,  148,  371,  401. 

form  of,  148. 

condition,  of,  401. 
Record,  129. 

copy  of,  389. 

Recovery,  against  one,  285. 
Redemption,  210. 

right  of,  54. 
Registers'  Court,  306. 

office,  401. 

Release,  412,  444,  402,  482. 
Religion,  13. 
Rent,  224. 

Repeal,  of  charter,  426. 
Representatives,  personal,  152. 
Reputation,  1,  450. 
Report,  of  viewers.  462. 

set  aside,  402, 
Reservation,  402. 
Residence,  4S5. 
Retraxit,  243. 
Return  days  of  Circuit  Court,  322. 

of  term,  271. 
Reviewers,  243. 
Right  of  action,  267. 

express.  402. 

implied,  462. 
River,  channel  of,  462. 
Road,  243. 
Rule,  enforced.  399. 
Sale,  by  administrator,  83,  96. 
Sale,  advance  on,  188. 

treasurer's,  54,  499. 

judicial,  44,  96. 


512 


INDEX. 


Sale — (continued). 

by  execution,  198. 

of  land,  471. 

by  sheriff,  44,  402,  447,  480, 
484. 

of  partnership  effects,  198. 

proceeds  of,  447. 
Sanity,  32. 
Satisfaction,  220,  425. 

presumption  of,  419. 
Scire  facias,  (J,  19,  64,  245,  246,  271, 

426. 

Sealed  instrument,  285 
Security,  2SO,  482. 

collateral,  216. 

freehold,  207. 
Sentence,  94. 
Settlement,  282,  444. 
Sheriff,  94. 

sale,  227. 

duty  and  liability  of,  94,  495. 

suit  against,  437. 

return  of,  495. 
Slander,  action  of,  14. 
Slave,  93,  188. 

services  of,  188. 
Special  court,  129. 
State  treasurer,  52. 
Statement,  383. 
Statutes,  foreign,  383. 

in  connection,  462. 
Stock,  fictitious,  426. 
Submission,  364. 

and  award,  364. 
Subscriptions,  of  stock,  426. 
Suit  pending,  plea  of,  442. 
Summons,  96. 
Supersedeas,  61. 
Supreme  Court,  297. 

duty  of,  462. 
Surety,  52,  24U,  257,  395. 

discharged,  240. 
Surplus,  4!S4. 
Surplusage,  232. 
Surrender,  267. 
Survey,  454,  489. 

return  of,  80,  454. 
Surveyor,  deputy,  79. 

assistant,  1. 
Surveying  fees,  454. 
Survivorship,  373. 
Susquehanna,  462. 
Taxation,  of  costs,  61. 
Tenants,  71. 
Terre-tenant,  64,  96,  152,  245. 


Term,  224,  271. 

Terms,  new  trial  on,  399. 

Time,  264. 

computation  of,  271,  419. 

reasonable,  383. 

lapse  of,  419,  489. 
Title,  74,  402,  454. 

derelict,  74. 

by  actual  settlement,  439. 

privity,  439. 

Transcript,  20,  115,  271. 
Transfer,  484. 
Treasurer's  sale,  54. 
Trial-list,  129. 
Trustee,  49,  220. 

responsibility  of,  188,  207. 

of  insolvent,  220,  262. 
Trust-fund,  220. 
Vendee,  471. 

of  administrator.  96. 

of  sheriff,  96,  152. 
Verdict,  general,  161. 

conditional,  257. 
Void  and  voidable,  32,  297. 
View,  243. 
Viewers'  report,  462. 
Waiver,  267,  285,  480. 
Ward,  207,  282, 
Warrant,  454. 

unreturned,  74. 

descriptive,  74. 

vague,  74. 

removed,  74. 

of  attorney,  245,  460. 

of  commissioners,  444. 
Warranty,  general,  417. 
Water-right,  402. 
Way-going-crop,  224. 
Widow,  alienation  by,  450. 
Wife,  interest  in  land,  371. 

desertion  of,  449. 

choses  in  action,  373. 
Will,  126. 

Witness,  216,  412,  444,495. 
Words,  actionable,  12. 

legal  construction  of,  383. 
Work,  payment  in,  426. 
Writ  or  error,  14,  61,  73,  74,  82,  114. 
135,  229,  421,  460. 

withdrawn,  114. 

oath  to  ground  a,  421. 
Writ  of  inquiry  of  damages,  229. 

executed,  229. 
Yeoman,  93. 


INDEX 


TO    THE    PRINCIPAL    MATTERS. 


ABANDONMENT. 

LAND  AND  LAND  OFFICE,  4. 

ACCOUNT-RENDER. 

The  judgment  of  quod  computet,  in  an  action  of  account-render,  In 
interlocutory,  upon  which  a  writ  of  error  will  not  lie.  Btitler  v.  Ztiylcr, 
135. 

ACTIONS  IN  GENERAL. 

INSOLVENT,  1.     MALICIOUS  PROSECUTION,  1,  2.     PLEADING. 

ACTION  ON  THE  CASE. 

MALICIOUS  PROSECUTION,  1,2. 

ACT  OF  ASSEMBLY. 

QUARTER  SESSIONS,  1. 

ADMINISTRATOR. 

EXECUTORS  AND  ADMINISTRATORS. 

AGENT  AND  FACTOR. 

EVIDENCE,  28.     WITNESS,  2. 

An  agent  thus  proved  his  own  authority,  "  I  never  executed  any  other 
deed  of  defeasance  than  the  one  in  question.  I  frequently  wrote  letters, 
signed  receipts,  and  other  papers  of  consequence  for  him  (the  principal), 
by  which  he  at  all  times  considered  himself  bound.  I  kept  all  his  books 
of  accounts  for  upwards  of  thirty  years  ;  never  had  a  written  power  of 
attorney.'1  Held,  that  the  deed  of  defeasance,  executed  by  such  an 
attorney,  in  the  name  of  his  principal,  is  not  evidence  to  convert  an  abso- 
lute deed  to  the  principal  into  a  mortgage.  Gratz  v.  Philips,  333. 

APPEAL. 

COSTS,  2,  G. 

APPLICATION. 

LANDS  AND  LAND  OFFICE,  4,  5. 

APPURTENANT. 

SHERIFF'S  SALE. 

ARBITRAMENT  AND  AWARD. 
BAIL.     COSTS,  2,  6. 

1.  Where  the  issued  joined  was  on  the  plea  of  a  submission  and  an 
award,  and  the  submission  was  general  "  of  and  concerning  the  differ- 
ences depending  between"  the  parties;  an  award  setting  forth  that  the 
arbitrators  had  examined  their  several  books  of  account,  and  taken  into 
consideration  a  judgment  bond  to  the  plaintiff  from  the  defendant,  and 
finding  a  particular  sum  due  to  the  former  on  that  bond,  without  deter- 
mining how  much,  or  whether  anything  was  due  on  the  other  subjects 
of  difference  submitted  to  or  examined  by  them,  is  not  final,  and  there- 
fore it  is  bad.     Johnston  v.  Jirackbill,  364. 

2.  Where  issue  is  joined  on  this  plea,  evidence  of  mistake  and  inad- 

1  P.  &  W.— 33  (513) 


514  INDEX. 

ARBITRAMENT  AND  AWARD. 

vertenco  in  the  arbitrators  in  making  the  award  is  made  inadmissible. 
But  where  such  evidence  is  received  under  this  plea,  and  the  award  is  a 
nullity,  the  court  will  not  reverse  for  the  admission  of  such  evidence. 
Johnston  \.  Jira'-kbill,  3l>4. 

ASSIGNEE 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES,  1.     BOND,  1,  2,  3. 

1.  An  assignee  of  bonds,  which  are  secured  by  a  mortgage,  is  entitled 
to  all  the  security  which  the  mortgage  affords,  although  he  did  not  know 
of  its  existence  when  he  took  an  assignment  of  the  bonds.  Jietz  v.  llteb- 
ntr,  '2^0. 

'2.  An  assignment  of  the  mortgage  deed,  to  one  who  holds  part  of  the 
bonds,  gives  liim  no  preference  over  the  other  bond-holders,  in  the  dis- 
tribution of  the  proceeds  of  sale  of  the  mortgaged  premises.  Id. 

ASSIGNMENT. 

ASSIGNEE.     HUSBAND  AND  WIFE,  2. 

ASSUMPSIT. 

CONSIDERATION.  1.     GUARDIAN  AND  WARD,  5.     LIMITATIONS,  9. 

ATTACHMENT.  DOMESTIC. 
PLEADING,  15. 

ATTACHMENT,  FOREIGN. 

1 .  A  debt  due  to  one  who  is  an  applicant  for  the  insolvent  laws  of 
Maryland,  and  for  whom  a  provisional  trustee  has  been  there  appointed, 
is  not  subject  to  a  foreign  attachment  in  Pennsylvania,  it  being  in 
yrtinio  leijis.  Mullikeu  v.  Auyhinbamjh,  117. 

'2.  A  foreign  attachment  will  lie  in  Pennsylvania,  at  the  suit  of  a 
citizen  of  another  state.  Id. 

3.  Qucsre.  Whether  a  foreign  attachment  abates  by  the  death  of  the 
defendant,  after  interlocutory  and  before  final  judgment.  Id. 

ATTORNEY. 

ERROR,  1,  19.  JUDGMENT.  4.  SHERIFF'S  SALE,  10. 
Where  judgment  in  ejectment  was  entered  by  agreement  of  the  parties, 
to  be  released  on  the  payment  of  a  certain  sum,  on  or  before  a  certain 
day.  and  the  money  is  not  paid  on  or  before  the  day,  the  judgment 
becomes  absolute,  and  the  receipt  of  the  money  by  the  attorney  of  the 
plaintiff,  after  the  day,  without  his  knowledge,  will  not  deprive  him  of 
his  right  to  the  land.  Gable  v.  Haiti,  264. 

AWARD. 

ARBITRAMENT  AND  AWARD. 

BAIL. 

MALICIOUS  PROSECUTION,  1,  2.  PRINCIPAL  AND  SURETY,  2.  RECOGNI- 
SANCE, 2. 

1.  The  bail  on   an  appeal  from   the  award  of  arbitrators,  under  the 
Compulsory  Arbitration  Act,  is  not  subject  to  the  practice  in  reference 
to  special   bail.     Where   the  appellee  is  dissatisfied  with  the  bail,  his 
course  is  to  apply  to  the  court  for  a  rule  for  additional  bail,  and  the 
opinion  of  the  court  that  the  bail  is  sufficient,  is  conclusive  ;  he  cannot 
treat  it  as  a  nullity,  and  issue  execution.     Snyder  v.  Zimmerman,  293. 

2.  Bail  may  be  dispensed  with  altogether,  and  by  suffering  a  term  to 
pass  without  objection  on  the  part  of  the  appellee,  it  is  dispensed  with. 
Id. 

BARGAIN  AND  SALE. 

DEED.     FRAUDS  AND  PERJURIES. 

Where  no  consideration  is  expressed  in  a  deed  of  bargain  and  sale, 
parol  evidence  may  be  given  to  show  that  a  consideration  did  pass  from 
the  grantee  to  the  grantor.  White  v.  Weeks,  486. 


INDEX.  515 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

If  the  payer  of  a  note  stands  by  and  sees  it  assigned  to  a  third  person, 
without  giving  the  assignee  notice  of  an  existing  defence,  he  Khali  aft«-r- 
wards  pay  the  amount  of  the  note  to  the  assignee,  although  the  consider- 
ation thereof  should  have  entirely  failed;  and  whether  his  conduct  pro- 
ceeded from  ignorance  or  design.  Decker  v.  Eiseiihauer,  470. 

BOND. 

ASSIGNEE.     EQUITY,  1.     JUDGMENT,  8. 

1.  If  one  who  is  about  to  receive  the  assignment  of  a  single  bill,  call 
upon  the  payer  to  know  whether  ho  will  pay  the  money,  and  is  informed 
by  him  that  he  will,  he  cannot  afterwards  set  up  any  defence  again*! 
the  payment  of  the  money  to  the  assignee,  which  existed  previous  to 
such  declaration.  Elliot  v.  Gallon,  24. 

'2.  One  about  to  take  an  assignment  of  a  bond,  is  bound  to  inquire 
into  every  circumstance  that  might  be  set  up  against  payment  of  any 
part  of  the  debt,  and  having  failed  to  do  so,  he  stands  exactly  in  the 
place  of  the  obligee.  Frantz  v.  Ilrown,  2.07. 

3.  It  is  competent,  therefore,  for  an  obligor  to  set  up  as  a  defence  to 
the  payment  of  his  bond  in  the  hands  of  an  assignee,  a  parol  agreement 
between  him  and  the  obligee,  made  after  the  bond  was  executed,  but 
before  it  was  assigned,  that  in  a  certain  event,  which  might  and  did  hap- 
pen after  the  assignment,  the  bond  was  not  to  be  paid.  Id. 

CANALS. 

PRACTICE,  8.     QUARTER  SESSIONS,  1.     ROADS  AND  BRIDGES. 

1.  An  application  by  the  owners  of  property,  under  the  Act  of  Oth 
April  1827,  for  damages  done  by  the  location  and  construction  of  the 
Pennsylvania  canal,  is  premature,  if  made  after  the  completion  of  the 
canal  upon  the  land  of  the  petitioner,  but  before  the  completion  of  that 
division  of  the  canal  upon  which  such  lands  are  located.    Commonwealth 
v.  Fisher,  462. 

2.  The  Acts  of  the  25th  February  182(5,  and  Oth  April   1827,  on  this 
subject,  are  to  be  construed  in  connection  with  each  other,  and  by  such 
construction  it  is  necessary  that  the  viewers  appointed  to  assess  the  dam- 
ages done  to  the  land  of  an  individual,  should,  in  their  report,  state  the 
courses,  distances  and  quantity,  with  such  references  as  will  designate 
the  exact  property  converted  to  the  use  of  the  state.      A/. 

3.  The  sixth  section  of  the  Act  of  K)th  April  l>2l>,  gave  authority  to 
the  commissioners,  to  take  releases  to  the  Commonwealth  from   individ- 
uals, through  whose  lands  the  canal  might  be  thereafter  located.     /-/. 

4.  The  consideration  of  such  releases,  so  taken,  has  not  failed,  because 
the  eastern  and  western  waters  have  not  been  united  by  that  route  of  the 
canal  along  which  the  relea.sors  live.  The  consideration  is.  that  the  canal 
shall  pass  through  the  land  of  the  releasor.     Id. 

CIRCUIT  COURT. 

1.  A  writ  of  error  will   not  lie  to  remove  a  judgment   in  the  Circuit 
Court  to  the  Supreme  Court,  in  any  case  in  which  the  party  might  have 
had  a  remedy  by  appeal.     Elliott  v.  Sanderson,  74 

2.  In  case  of  appeal  from  a  decree  of  the  Circuit  Court,  a  certiorari 
is  not  necessary,  nor  can  the  prothonotary  demand  his  fee  before  enter- 
ing it.     Koniijmachcr  v.  Kinimel,  207. 

3.  The  return-days  of  process  into  the  Circuit  Court  from  the  Common 
Pleas,  Quarter  Sessions  or  Orphans'  Court,  by  Act  of  A.-soinblv.  are  the 
third  Monday  in  March,  the  first  Monday  in  Septomln'r.  and  tlie  second 
Monday  in  December  in  each   year.     A   certiorari   is   nut   necessary  to 
remove  a  record  on  appeal  from  the  Orphans'  Court  to  the  Circuit  Court. 
feathcrs's  Appeal,  322. 

4.  Where  an  appeal  is  taken  from    the  Orphans'  Court   to  the  Circuit 
Court,  the  appeal   is  not  required  to  be  filed  before  the  next  return-day 


516  INDEX. 

CIRCUIT  COURT. 

after  it  is  tuken,  nor  can  any  rule  be  taken  in  the  case  until  then :  but  if 
the  record  be  filed  before  the  return-day,  and  the  cause  is  heard  and 
decided  by  the  Circuit  Court  without  objection,  it  is  too  late  to  take  that 
objection  in  the  Supreme  Court,  after  the  cause  is  brought  there  upon 
appeal  by  a  motion  to  quash.  Feather g' 9  Appeal,  322. 

0.  The  Circuit  Court  has   no  appellate  jurisdiction  of  proceedings  in 
the  Quarter  Sessions,  when  not  according  to  the  course  of  the  common 
law  ;  hence  it  has  not  jurisdiction  of  a  proceeding  against  a  husband  for 
deserting  his  wife  and  children.     McKet's  Case,  449. 

6.  The  Circuit  Court  may  remove  a  cause  by  habeas  corpus,  with  a 
view  to  the  trial  of  an  issue,  but  it  can  only  do  so  when  the  issue  is 
according  to  the  course  of  the  common  law.  Id. 

CONDITION. 

JUDGMENT,  8.     RECOGNISANCE,  3. 

CONSIDERATION. 

BARGAIN  AND  SALE,  31.     CANALS,  4. 

An  agreement  to  forbear  to  sue  for  a  reasonable  time,  is  a  considera- 
tion certain  enough  upon  which  to  sustain  an  action.  Sidicell  \.  Evans, 
383. 

CONSTABLE. 

A  justice  of  the  peace  has  power  to  supersede  an  execution  issued  by 
him  ;  and  such  supersedeas  will  exonerate  the  constable  from  liability. 
Shuman  v.  Pfotttz,  61. 

CONTRACT. 

CONSIDERATION,  1.     FOREIGN  LAWS  AND  JUDGMENTS,  1. 

CORPORATION. 

1.  A  charter  of  incorporation  cannot  be  declared  void  in  a  collateral 
suit,  it  can  only  be  vacated  by  a  scire  facias  to  repeal  it ;  or  on  a  writ  of 
quo  warranto  at  the  suit  of  the  Commonwealth.     McCona/ty  v.  The  Cen- 
tre and  Kitshacoqillas  Turnpike  Road  Co.,  426. 

2.  An  agreement  between  commissioners  authorized  to  take  subscrip- 
tions of  stock,  that  a  certain  number  of  shares  of  fictitious  stock  shall 
be  subscribed,  in  order  to  enable  them  to  obtain  a  charter,  is  a  fraud 
upon  the  bona  fide  subscribers,  which  will  relieve  them  from  any  obliga- 
tion to  pay.     /'/. 

3.  A  declaration  made  by  a  third  person,  in  the  presence  of  the  com- 
missioner, to  one  about  to  subscribe  for  stock,   that    he  can   pay  his 
subscription   in  work,  and   this  is  not  objected   to  at  the  time   by  the 
commissioner,  must  be  taken  as  his  declaration  ;  and  there  is  no  distinc- 
tion between  the  commissioner  and  the  corporation,  in  regard  to  this  pro- 
mise.    Id. 

COSTS  AND  FEES. 

CIRCUIT  COURT,  2.     ERROR,  4.     PRACTICE,  5,  6. 

1.  A.   brings  an   action  of   assumpsit  before  a  justice  of  the  peace 
against  B.,  and  recovers  a  judgment  for  a  certain  sum,  from  which   B. 
appeals;  the  cause  being  afterwards  tried  in  the  Common  Pleas,  a  verdict 
and  judgment  was  rendered  in  favor  of  A.  for  the  same  sum  :   Held,  that 
A.  was  entitled  to  recover  bis  costs  since   the  appeal.     Johnston  v.  Per- 
kins,  23. 

2.  Where  the  defendant,  under  the  Act  of  the  20th  March  1810,  regu- 
lating arbitrations,  appeals  from  the  award  of  arbitrators,  and  a  general 
verdict  passes  for  him,  he  is  entitled  to  the  costs  which  follow  a  final  judg- 
ment; such  case  is  not  within  the  provisions  of  that  act,  as  to  costs,  and 
they  are  given  by  the  law  as  it  existed   before  the  passage  of  that  act. 
(Jallfitin  v.  Common,  115. 

3.  Where   a  transcript  of  the  judgment  of  a  justice  of  the  peace  is 
filed  in  the  office  of  the  prothonotary  of  the  Court  of  Common  Pleas,  and 


INDEX.  517 

COSTS  AND  FEES. 

the  judgment  is  opened,  and  the  defendant  let  into  a  defence  in  that 
court,  and  a  verdict  is  rendered  for  the  defendant,  the  one  hundred  dollar 
act,  regulating  the  payment  of  costs  on  appeal  from  the  judgment  of  a 
justice,  does  not  apply.  Gallatin  v.  Cornman,  11.0. 

4.  Costs  are  not  recoverable  by  either  party  in  an  action  of  partition. 
Stewart  v.  Baldwin,  461. 

5.  Costs  are  exclusively  a  matter  of  statutory  creation.     1<1. 

6.  A  judgment  was  rendered  by  a  justice  of  the  peace  for  the  plaintiff, 
the  defendant  appealed   to  the  Common  Pleas,  he  afterwards  appealed 
from  an  award  of  arbitrators  against  him,  and  paid  the  costs.     Upon  a 
trial  of  the  cause  by  a  jury,  the  defendant  gave  evidence  which  had  nut 
been  given  to  the  justice  nor  to  the  arbitrators,  and  a  general  verdict  was 
rendered  in   his  favor :    Held,  that  he  was  entitled  to  recover  from  the 
plaintiff  the  costs  which  he   had  paid   upon  the   appeal,     llonuiter  v. 
Brown,  487. 

COURTS. 

ERROR,  14,  18.     EVIDENCE,  19.     FOREIGN  LAWS  AND  JUDGMENTS,  1. 

DAMAGES. 

QUARTER  SESSIONS,  1. 

DEBTOR  AND  CREDITOR. 

A  creditor  who  has  obtained  judgment  against  the  principal,  against 
the  endorsers,  and  against  the  absolute  bail  of  the  principal,  and  has 
issued  execution  and  levied  upon  the  land  of  the  principal  or  of  the  abso- 
lute bail,  may,  nevertheless,  have  execution  of  the  chattels  of  the  endor- 
sers. Nothing  but  actual  satisfaction  can  prevent  him.  Gro  v.  The 
Huntinydon  Bank,  425. 

DEED. 

AGENT  AND  FACTOR,  1.  BARGAIN  AND  SALE,  1.  EVIDENCE,  _<i. 
FRAUDS  AND  PERJURIES,  2,  3. 

1.  A  delivery  is  essential  to  the  proper  and  legal  execution  of  a  deed, 
and  that  delivery  may  be  to  the  party,  to  one  authorized  by  the  party  to 
receive  it,  or  to  a  stranger  for  the   use  of  the  party  ;  but  the  placing  a 
deed  on  record  by  the  grantor,  is  not  an  absolute  delivery,  but  only  evi- 
dence of  it,  of  which  the  jury  may  judge.      Chess  \.  Chess,  32. 

2.  The  date  of  a  deed  is  prima  facie  evidence  of  the  time  of  its  delivery, 
but  it  is  not  conclusive.     Hall  v.  Benner,  402. 

DEVISE. 

WILL. 

DIRECT  TAX. 
TAXES. 

DONATION  LAND. 

LANDS  AND  LAND  OFFICE. 

EJECTMENT. 

EVIDENCE,  1.     LANDLORD  AND  TENANT,  1.  2.     PLEADING.  2. 

1.  An  ejectment  may,  in  some  cases,  be  supported  on  a  warrant  with- 
out a  survey.      Smay  \.  Smith's  KJC'IS,  1. 

2.  An  entry  is  not  necessary  in  any  case  in  Pennsylvania,  in  order  to 
enable  the  person  who  has  title,  to  n  cover  the  possession  of  lands.    Car- 
lisle v.  Stitler,  6. 

3.  When  a  judgment  in  ejectment  was  entered  by  agreement  of  the 
parties,  to  be  released  on  the  pavment  of  a  certain  sum.  on  or  l>ofore  a 
certain  dav,  time  is  of  the  essence  of  the  contract  :  and  if  the  money  tie 
not  paid  on  or  before  the  day,  the  judgment  becomes  absolute  and  inde- 
feasible.     Gublc  v.  Hain,  264. 

4.  The  receipt  of  the  monev.  by  the  attorney  of  the  plaintiff,  after  the 
day  stipulated  tor  payment  without  the  knowledge  of  his  client,  will  not 


518  INDEX. 

EJECTMENT. 

prevent  the  plaintiff  from  pursuing   his  judgment  to  execution,  and 
obtaining  the  possession  of  the  land.      Gable  v.  //am,  264. 

ENCUMBRANCE.     See  INCUMBRANCE. 

EQUITY. 

ASSIGNEE,  1,  2.  BOND,  1,  2,  3.  EXTINGUISHMENT  AND  SATISFACTION, 
3.  VENDOR  AND  VENDEE,  1. 

1.  In  a  case  where  chancery  would  enjoin  an  obligee  in  a  bond  or  his 
assignee  from  proceeding  at  luw,  while  the  obligor  remains  a  loser  or  in 
jeopardy  as  a  surety,  evidence  is  admissible  to  enable  the  jury  to  pro- 
duce the  same  result  by  means  of  a   conditional   verdict.     Frantz  v. 
Brown,  257. 

2.  A.  being  the  owner  of  a  tract  of  unimproved  land,  sells  one  hun- 
dred acres  to  B.  and  one  hundred  acres  to  C. ;  B.  and  C.  go  upon  the 
ground  and  mark  a  division  line  between  them  ;  it  was  afterwards  dis- 
covered that  A.  had  no  title  to  the  land:  B.  then  went  upon  it,  had  a 
survey  made  of  four  hundred   acres,  including  the  oue  hundred  acres 
sold  to  C.  and  acquired  title  by  actual  settlement.     Held,  that  there  was 
not  such  a  privity  of  estate  or  title  between  B.  and  C.  as  to  prevent  B. 
from    thus  acquiring  for  himself,   a   title  to  the   whole   of  the   land. 
Smiley  v.  Dixon,  43U. 

ERROR. 

ARBITRAMENT  AND  AWARD,  2.  EVIDENCE,  17.  PLEADING,  10,  17. 
PRACTICE,  1,  7. 

1.  The  prothonotary  of  the  Court  of  Common  Pleas,  has  no  power  to 
administer   the   oath   required   to  obtain  a  writ  of  error.     Pumroy   v. 
Lewis,  14. 

2.  In  a  case  which  originated  before  a  justice  of  the  peace,  from  whose 
judgment  there  was  an  appeal  to  the  Common  Pleas,  whore  a  verdict 
and  judgment  was  rendered  for  a  sum  exceeding  the  jurisdiction  of  the 
justice,  this  court  affirmed  the  judgment  upon  the  plaintiff's  releasing 
the  excess.     Darrak  \.  Warnock,  21. 

3.  An  execution  issued  upon  a  judgment  out  of  the  Court  of  Common 
Pleas,  is  not  removed  into  this  court,  unless  specifically  mentioned  in 
the  praecipe  and  writ  of  error.     S/imnan  v.  1'J'outz,  01. 

4.  This  court  will  not  hear  the  first  allegation  of  error,  in  the  taxa- 
tion of  a  bill  of  costs;  the  motion  to  correct  the  error  must  be  first  made 
in  the  court  below.     Id. 

5.  A  writ  of  error  will  not  lie  upon  an  order  of  the  Court  of  Common 
Pleas  overruling  a  motion  to  strike  off  an  appeal,  and  setting  aside  an 
execution,  supposed  to  have  been    improvidently  issued.      Gardner   \. 
fiypy's  Adm'r,  73. 

6.  A  writ  of  error  will  not  lie  to  remove  a  judgment  in   the  Circuit 
Court,  to  the  Supreme  Court,  in  any  case  in  which  the  party  might  have 
had  a  remedy  by  appeal.     Elliott  v.  Sanderson,  74. 

7.  A  writ  of  error  will  not  lie-  to  the  opinion  of  the  Court  of  Common 
Pleas,  discharging  a  person,  on  a  writ  ol  habeas  corpus,  from  servitude. 
linsvell  v.  Cfimvifimreallh,  H2. 

8.  A   party  who  has  recovered  a  judgment  in  the  Court  of  Common 
Pleas,  and  received  the  amount  of  it  from  the  defendant,  will  not  be 
permitted  to  reverse  that  judgment  on  a  writ   of  error.     Laiiijhlin  v. 
Laughliris  Adni'r,  114. 

'.'.  Quave.  If  a  plaintiff  in  error  withdraws  his  writ,  and  has  an  entry 
made  upon  the  docket,  "writ  of  error  withdrawn,"  whether  it  is  not  a 
retraxit,  and  will  not  bar  another  writ.  Id. 

10.  Error  does  not  lie  upon  a  judgment  quod  compulet  in  account- 
render.     Jieiller  v.  /?<  tylcr,  1 35. 

1 1.  In  an  action  by  Campbell's  Executors  r.  Cdhoun's  Administrators, 
for  contribution  on  account  of  purchase-money  and  interest  paid  by  the 


INDEX.  519 

ERROR. 

former  on  a  joint-contract,  the  court  below  charged  tin- jury,  that  if  the 
contract  were  not  rescinded  between  Campbell  atid  Colhoun,  the  former 
could  recover  for  interest  paid.  The  jury  found  a  yentral  verdict  for 
defendants .  Held,  that  it  appeared  that  the  jury  went  on  a  distinct 
ground  of  fact,  "  the  rescission  of  the  contract"  and  if  error  had  lx,'en 
committed  in  the  charge  as  to  the  principle,  this  court  would  not  reverse 
on  that  ground,  as  it  was  without  prejudice  to  the  party.  Campbells 
Ex1  rs  v.  CoUiouii's  Adrurs,  140. 

12.  When  the   Court  of  Common  Pleas  erroneously  permit  evidence 
to  bo  given  to  the  jury,  no  such  evidence  being  afterwards  given,  this 
court  will  not  reverse  the  judgment,     hank  of  Pennsylvania  v.  Jacobs' s 
Adm'rs,  161. 

13.  Where  it  appears  by  a  calculation,  that  the  jury  did  not  allow 
credits,  of  which  incompetent  evidence  was  given,  the  judgment  will 
not  be  reversed  on  a  bill  of  exception  to  such  evidence.     Johnston  v. 
Mrackbill,  304. 

14.  A  judge  cannot  be  required   to  give  a  Icijal  construction  to  the 
words  of  a  witness,  and  to  say  whether  in   point  of  law  they  sustain  the 
allegation  in  point  of  fact.     Siiltrell  v.  fjrans,  383. 

lli.  A  certified  copy  of  a  docket  entry  of  a  suit  cannot  be  received  to 
establish  the  existence  of  a  former  suit  pending  for  the  same  cause;  and 
if  received,  the  error  will  not  be  cured  by  the  instruction  of  the  court  in 
their  charge  to  the  jury,  to  disregard  it.  Ini/ham  v.  Mason.  3*9. 

1C).  An  order  of  court  making  an  assignment  of  a  judgment  to  u 
surety,  may  be  reviewed  in  error.  Jiurns  v.  Huntim/dmt  Hunk,  395. 

17.  It  is  error  to  submit  a  question  of  law  to  the  jury.      Common- 
wealth v.  Henderson,  401. 

18.  If  the  court  should  decide  from  inspection  of  the  papers,  that  a 
water-right  and  tilt-hammer  would  pass  by  a  sheriff  sale  as  an  appur- 
tenant, it  would  be  error;  it  is  a  question  of  fact  for  the  jury.     Hail  v. 
Jienner,  402. 

19.  The  oath  upon  which  to  ground  a  writ  of  error,  must  be  made  by 
tlu;  party,  and  it  is  not  sufficient  if  made  by  the  attorney.     Bryan  v. 
McCulloch,  421. 

ESTATE. 

WILL,  2. 

ESTOPPEL. 

LANDLORD  AND  TENANT,  1,  2.     PLEADING,  2,  3,  4.    SHERIFF'S  PEED,  1. 

EVIDENCE. 

AGENT  AND  FACTOR,  1.  ARBITRAMENT  AND  AWARD,  2.  EQUITY.  1. 
ERROR,  12,  13,  14.  IlrsnvND  AND  WIFE,  I.  INSOLVENT,  3.  LANDS  AND 
LAND  OFFICE,  9,  15,  10.  LEGACY,  4.  MALICIOUS  PROSECUTION,  1.  '2. 
OFFICE  AND  OFFICER,  1.  PARENT  AND  CHILD,  I.  PLEADING,  14.  PRAC- 
TICE, 0.  PRESCRIPTION  AND  PRESUMPTION,  2.  PROTHONOTARIKS  AND 
CLERKS  OF  COURTS,  1.  SURVEYOR.  1.  WITNESS,  I,  2. 

1.  In  ejectment  to  recover  a  tract  of  land,  whore  reference  is  made  in 
a  deposition  to  lines  run   and  surveys  made,  and   a  draft  is  annexed, 
which  does  not  embrace  all  those  lines  and  survevs,  but  only  those  of  the 
tract   in   dispute,    it  will    be  sufficient,  if  the  defendant  \va,s   present  to 
cross-examine,  and  did  not  ask  for  any  other  or  furl  her  draft,      .Swiiiy  v. 
Smith's  Ex'rs,  1. 

2.  Declarations  of  a  grantor  made  subsequently  to  the  execution  of  a 
deed,  cannot  be  given  in  evidence  to  invalidate  that  deed.      ('Ac.**  v. 
Chess.  32. 

3.  Hut  when  the  question  to  be  determined  by  the  jury  is  whether  tho 
grantor    was    sane    or    insane,    at    and    about    the    time   the    deed  was 
executed,  it  is  competent  to  give  evidence  of  his  declarations  made  soon 


520  INDEX. 

EVIDENCE. 

after  the  execution  of  the  deed,  for  the  purpose  of  proving  imbecility  of 
mind.     Chess  v.  Chess,  32. 

4.  A  man's  neighborhood  is  co-extensive  with  his  intercourse  among 
his  fellow  citizens.     One  witness,  therefore,  testified  that  he  knew  the 
general  character  of  another  witness,  whose  character  was  in  issue,  but 
he  did  not  know  his  character  in  his  immediate  neighborhood.     It  is 
competent  to  ask  the  witness  whether  he  would  believe  him  on  his 
oath.     Id. 

5.  The  account  of  a  public  officer,  settled  by  the  auditor  general,  and 
approved   by  the   state   treasurer,  and   duly   certified    by   the    auditor 
general,  to  be  a  true  copy  from  the  records  of  his  office,  is,  priina  facie, 
sufficient  evidence  to  enable  the  Commonwealth  to  recover  the  balance 
due  by  such  officer,  in  a  suit  brought  on  his  official  bond  against  his 
surety.     Commonwealth  v.  Farrelly's  Administrators,  52. 

6.  Campbell,  in   1805,   bought  of  W.  5000  acres  of  land,  at  $4  per 
acre.  The  purchase  was  at  a  credit  of  eight  years,  with  interest  at  three 
per  cent.,  after  which  the  principal  was  to  be  paid  at  three,  six  and  nine 
years,  reserving  six  per  cent,  on  unpaid  balances.     By  settlement  made 
in   1819,   Campbell  had   paid  the  interest  to  W.  up  to  that  time,  and 
$4429.42,  on  account  of  principal.     In  an  action  of  assumpsit,  brought 
in  1827,  after  Campbell's  death,  against  the  administrators  of  Colhoun, 
for  money  so  paid  to  W.,in  which  the  evidence  to  charge  the  defendants 
consisted  of  a  series  of  letters  written  by  Colhoun  to  Campbell,  from 
1805  to  1814,  from  which  it  appeared  that  Colhoun  had  been  let  into  a 
participation  in  Campbell's  purchase.    Held,  that  six  letters  from  Camp- 
bell to  Colhoun,  in  a  period  of  as  many  years  from   1814  to   1820,  in 
which  there  was  no  allusion  to  the  subject,  were  evidence  of  the  rescis- 
sion  of  the   agreement   between  Campbell   and   Colhoun.     Campbell's 
Executors  v.  Colhoun' a  Adm'ra,  140. 

7.  Upon  the  allegation  of  forgery,  it  is  not  necessary  to  produce,  as 
witnesses,  all  the  persons  in  whose  possession  the  forged  paper  had  been, 
in   order  to  identify  it — its  identity   is  a  matter  of  fact  for  the  jury. 
Hank  of  Pennsylvania  v.  Jacobs's  Adm'rs,  101. 

8.  A  comparison  of  handwriting  is  admissible  in  evidence  in  civil  cases 
in  corroboration  of  a  belief  of  a  witness  founded  upon  actual  knowledge. 
Id. 

0.  The  testimony  of  an  expert,  who  speaks  alone  from  his  knowledge 
and  skill  in  handwriting,  it  is  not  competent  to  establish  a  forgery.  Id. 

10.  A  witness  is  incompetent  to  prove  a  signature,  without  proof  of 
having  seen  the  person  write,  or  of  other  circumstances  to  show  know- 
ledge of  the  handwriting  which  he  is  called  to  prove.     Boyd's  Admrs 
v.  Wilsr.n,  210. 

11.  It  is  not  enough,  without  such  preliminary  proof  that  the  witness 
swears  that  the  signature  offered  is  the  signature  of  the  person  whose  it 
purports  to  be.     Id. 

12.  Trustee  for  the  payment  of  debts,  paid  a  judgment  against  the 
debtor,  and  took  an  assignment  in  writing  on  the  back  of  the  bond  on 
which  it  was  entered,  expressed  to  be  for  value  received:  Jftld,  that  it 
was  competent  to  prove  by  parol  that  the  assignment  had  been  made  to 
enable  the  trustee  to  enter  satisfaction  on  it,  and  not  to  preserve  it  is  a 
subsisting  debt.     Keller  \.  Leib,  220. 

]'.',.  If  evidence  must  be  immaterial  when  given,  the  court  ought  to 
reject  it.  Id. 

14.  Whore  the  plaintiff  interrogated  defendant's  witness  as  to  a  con- 
versation which  had  taken  place  between  him  and  a  certain  W.  B. ;  and 
the  witness  stated  the  conversation,  by  which  it  appeared  that  he  had  not 
told  W.  B.  all  that  he  related  in  court,  and  the  plaintiff  thon  asked  him 
"why  did  you  not  tell  the  whole  truth  to  \V.  B.  ?''  and  the  witness  re- 
plied, "  I  kept  it  back  because  I  was  living  in  the  plaintiff's  house,  a* 


INDEX.  521 

EVIDENCE. 

tenant,  and  if  T  had  told  it,  he  would  have  thrown  mo  out  nock  and 
heels,  he  would  have  knocked  my  brains  out.  As  soon  as  fie  did  know 
it,  he  took  out  a  landlord's  warrant,"  and  the  plaintiff  then  called  W.  B. 
and  by  him  gave  evidence  to  contradict  the  statement  made  of  the  con- 
versation. Held,  that  it  was  competent  to  the  defendant  to  give  evidence 
that  the  plaintiff  was  a  quarrelsome  and  dangerous  man  to  those  ho 
had  a  prejudice  against.  Me  Kim  v.  Homers,  287. 

If).  When  a  party  has  an  opportunity  of  being  present  at  the  taking 
of  a  deposition,  and  does  not  choose  to  avail  himself  of  it,  he  shall  not 
afterwards  be  permitted  to  except  to  a  leading  question  and  answer  in 
such  deposition,  or  to  make  formal  objections  against  it.  When  a  party 
attends  and  objects  to  the  form  of  the  question,  then  if  the  opposite  party 
persists,  he  does  it  at  his  peril.  Id. 

1C).  A  deposition  taken  in  the  Registers  Court  upon  hearing  of  any 
cause  litigated  in  that  court,  but  not  decided,  is  not  evidence  upon  the 
trial  of  an  issue  between  the  same  parties,  directed  by  that  court  without 
proof  that  the  deponent  is  dead,  out  of  the  jurisdiction  of  the  court,  or 
unable  to  attend.  Dietrich  v.  Dietrich,  300. 

17.  Quicre,  Whether  the  decision  of  the  trying  court  upon  the  pre- 
liminary proof  of  the  inability  of  the  witness  to  attend  is  the  subject  of 
error  ?     Id. 

18.  Qucere.  Upon  an  issue  devisavit  vel  no/i,  are  the  declarations  of 
a  devisee,  who  is  a  party  to  the  issue,  evidence,  where  there  are  other 
devisees  or  legatees  not  parties  ?     Id. 

111.  The  construction  of  written  evidence  is  for  the  court,  and  of  parol 
evidence  for  the  jury;  and  an  admixture  of  parol  with  written  evidence 
draws  the  whole  to  the  jury.  Sidwell  v.  AV<m.?,  833. 

20.  It  is  competent  to  give  evidence  of  what  was  said  previously  to 
the  execution  of  a  deed,  in  order  to  establish  the  fact  that  the  grantee 
received  the  deed  in  trust  for  another.     Imjtiam  v.  Mason,  3S9. 

21.  A  certified  copy  of  the  docket  entry  of  a  suit  cannot  be  received 
to  establish  the  existence  of  a  former  suit  pending  for  the  same  cause ; 
and  if  received,  the  error  will  not  be  cured  by  the  instruction  of  the  court 
in  their  charge  to  the  jury  to  disregard  it.     Id. 

22.  The  date  of  a  deed  is  prima  facie  evidence  of  the  time  of  its  deliv- 
ery, but  it  is  not  conclusive.     Hall  v.  fienner,  402. 

23.  The  recital  in  a  sheriff's  deed  that  the  sale  was  made  on  a  certain 
day,  does  not  estop  the  grantee  from  showing  by  parol  that  it  was  made 
on  a  prior  day.     Id. 

24.  A  witness  who  swore  before  arbitrators  that  from  an  entrv  in  his 
book,  which  he  had  then  before  him,  he  knew  an  occurrence  had  taken 
place  on  a  certain  day,  having  died  before  the  trial  of  the  cause  in  court, 
it  is  competent  to  prove  what  he  swore  before  the  arbitrators,  without 
the  production  of  the  book.      Cox  v.  Norton,  412. 

25.  The  fact  of  a  paper  having  been  given  in  evidence  before  arbitra- 
tors without  objection,  is  no  reason  why  it  should  be  received  upon  the 
trial  of  the  cause  in  court,  if  it  is  otherwise  illegal.      /</. 

2t>.  If  a  grantor  make  a  deed  with  general  warrantee,  he  cannot  show 
by  parol  that  an  agreement  was  made  a  few  days  before,  that  the  grantee 
was  to  patent  the  land.  Mch'eiiiHin  v.  D»u>jhman,  417. 

27.  Satisfactory  proof  of  the  loss  of  a  written  advertisement  must  bo 
given  to  lay  a  ground  for  the  admission  of  the  advertisement  copied  into 
the  newspaper.     McConahy  \,  The  Centre  and  Kishacoquillas   Turnpikt 
Itoad  Co.,  42ti. 

28.  A  power  of  attorney,  executed  by  an  administrator,  who  doos  not 
therein  stvle  himself  as  such,  by  virtue  of  which  a  dispute  is  settled  be- 
tween his  intestate  and  a  third  person,  by  the  attorney  in  fact,  is  compe- 
tent evidence  to  go  to  the  jury.  with,  the  settlement  and  release,  particu- 


522  INDEX. 

EVIDENCE. 

larly  if  it  did  not  appear  that  the  administrator  had  any  account  in  his 
own  right  to  settle.     Irwiit's  Adm'r  v.  Allen,  444. 

29.  It  is  a  fatal  objection  to  a  deposition  taken  to  be  read  in  evidence 
in  a  cause,  that  it  is  in  the  handwriting  of  an  attorney  concerned  in  the 
cause,  or  specially  employed  by  the  party  for  that  purpose,  unless  the 
opposite  party  or  his  attorney  be  present  and  consent  thereto.     Addle- 
man  v.  Masterson,  454. 

30.  Where  a  plaintiff  and  defendant  reside  in  the  same  town,  a  copy 
of  a  notice  to  take  depositions  left  at  the  house  of  the  defendant,  with 
the  defendant's  daughter,  by  the  plaintiff,  more  than  ten  days  before  the 
day  appointed  for  taking  the  depositions,  is  not  a  sufficient  service  of 
notice.     Lemon  v.  Kishop,  485. 

31.  Where  no  consideration  is  expressed  in  a  deed  of  bargain  and  sale, 
parol  evidence  may  be  given  to  show  that  a  consideration  did  pass  from 
the  grantee  to  the  grantor.      White  \.  Weeks,  485. 

32.  It  is  competent  to  prove  that  the  words  "  proceedings  stayed  by 
plaintiff's  attorney,"  which   had  been   endorsed  on    a  writ  of  liberari 
facias,  and  signed  by  the  sheriff,  and  which  were  struck  out  or  erased  by 
a  line  run  through  them,  though  still  legible,  were  his  return  to  that 
writ,  and  that  he  had  not  struck  them  out.     Meredith  v.  Shetcell,  495. 

33.  It  is  competent  to  prove,  and  that  by  the  sheriff,  that  upon  such 
writ  of  liberari  facias,  he  did  not  deliver  the  land  to  the  plaintiff,  although 
it  was  set  forth  in  the  inquisition  returned  with  the  writ  that  the  sheriff 
and  inquest  had  caused  to  be  delivered  the  property  extended,  "  until  the 
debt  and  damages  in  the  same  writ  mentioned,  together  with  interest, 
&c.,  be  fully  levied."     Id. 

EXECUTION. 

DEBTOR  AND  CREDITOR,  1.     JUDGMENT,  10.     PRACTICE,  7. 

1.  The  bare  seizing  of  land  in  execution  to  the  value  of  the  debt,  is 
not  a  satisfaction.     Gro  v.  The  Huntingdon  Bank,  425. 

2.  An  inquest  under  a  liberari  facias  can  only  determine  the  value  of 
the  land,  the  yearly  rents  and  profits,  and  the  term  during  which  it  shall 
be  extended.     The  delivery   of  the  land  is  the  executive  duty  of  the 
sheriff  alone.     Meredith  v.  Shewell,  495. 

EXECUTORS  AND  ADMINISTRATORS. 

EVIDENCE,  2H.     INTESTATE   AND  DECEDENT,  4,  6.     PLEADING,  1,  8,  9, 
10.     PRESCRIPTION  AND  PRESUMPTION,  2. 

1.  Where  a  personal  estate  is  appraised,  and  a  part  taken  by  the  heirs 
at  the  appraisement,  and  a  part  sold  at  an  advance  upon  the  sum  at  which 
it  was  appraised,  the  administrators  will  not  be  charged  with  a  propor- 
tional advance  on  the  goods  retained,  without  any  evidence  that  the  goods 
retained  were  of  greater  value  than  their  appraised  price.    A'j'/j<7  v.  Mar- 
rison's  Ad'mr,  1K8. 

2.  Qinpre.     Under  what   circumstances   should  an  administrator   be 
charged  with  an  advance  on  goods  so  taken  ?     Id. 

3.  J.  M.  died  in  1810,  having  in  his  possession  a  bond  on  his  brother, 
D.,  given  in   1794,  which  come  to  the  hands  of  the  administrator,  who, 
with  D.  in  1811,  although   the  cause  of  action  exceeded  $KH),  entered 
lx;fore  a  justice  of  the  peace  an  amicable  action,  and  referred  all  matters 
in  variance  to  referees,  who  reported   in   favor  of   D. ;    from    this   the 
administrator  appealed.     In    1H14.  the   iSupreme  Court  decided,  that  a 
justice  had  not  jurisdiction  by  amicable  action,  and  reference,  when-  the 
cause  of  action   exceeded  §100.     This  decision  was  published  in    1*18; 
the  appeal  was  then  quashed  :    D.  obtained  judgment  by   scire  facias, 
reviving  the  original  judgment  in  his  favor  before  the  justice.     To  this 
the  administrator  issued  a  certiorari,  reversed  the  judgment  for  want  of 
jurisdiction  in  the  justice,  and  to  the  next  term,  in  1S20,  brought  suit  on 
the  bond,  and  recovered  judgment.     Id. 


INDEX.  523 

EXECUTORS  AND  ADMINISTRATORS. 

D.,  who  in  1820,  was  solvent,  when  judgment  wsxs  rendered  against 
him,  had  become  insolvent,  and  the  dt;bt  was  lost.  By  referring  to  the 
record  of  the  proceeding  in  court,  it  appeared  the  administrator  had 
eminent  counsel.  Jleld,  that  although  the  proceeding  before  the  justice 
had  been  a  mistake,  the  administrator  was  not  liable  i'or  the  debt  which 
had  been  lost.  King  v.  Morrison's  Adm'r,  188. 

4.  J.  M.  left  a  slave  of  advanced  age,  who  by  the  advice  of  appraisers, 
and  the  family,  was  not  appraised,  arid  lived  with  the  family  till  they 
separated,  and  with  the  widow  until  her  death,  and  since  that  lived  with 
the  administrator.     At  the  time  of  the  account  taken,  IS'JT,  she  was  of 
no  value,   and  the  administrator  agreed   to  keep  her  during  her  life. 
Held,  That  under  the  circumstances  of  the  case,  the  administrator  was 
not  chargeable  with  the  value  of  her  services.     Id. 

5.  If  executor  or  administrator  sells  goods  of  testator  or  intestate,  and 
do  not  take  security  for   the  price,   he  is  generally  charged  with  the 
amount.     If  the  bail  or  security,  is  a  man  generally  reputed  good  for  so 
much,  it  is  sufficient,  it  is  not  necessary  that  he  should  be  a  freeholder. 
Konigmacher  v.  Kimmel,  'J07. 

6.  A  wife  executrix,  whether  so  constituted  before  or  after  her  mar- 
riage, may  be  sued  with  the  other  executors :   or  if  sole  executrix,  with 
her  husband  ;    and  in  either  case,  after  judgment  against  her  as  execu- 
trix, may  have  a  devastavit  fixed  on  her  and  her  estate,  and  her  personal 
or  real  estate  sold  for  it.     Gratz  v.  Philips,  333. 

7.  Executors  who  were  authorized  to  sell  the  real  estate  of  their  testa- 
tor, for  the  payment  of  certain   legacies,  sold   the   same,  and  afterwards 
settled  their  account  in  the  Orphans'  Court,  by  which  it  appeared  there 
were  assets  to  pay  the  legacies :  the  legatees  afterwards  tiled  refunding 
bonds,  and  brought  suits  against  them  as  executors,  and  obtained  judg- 
ments.    Held,  that  .-such  judgments  are  not  liens  on  the  real  estate  of  the 
executor.     McCMough  v.  Sample's  Kx'm,  4l!2. 

EXTINGUISHMENT  AND  SATISFACTION. 

DKHTOR  AND  CREDITOR,  1. 

1.  A.  &  Co.  and  B.  &  Co.  contracted  ,/oiHf/y  to  purchase  from  C.  a  quan- 
tity of  wheat,  for  which  they  were  to  give  the  notes  of  certain  banks,  which 
were  specified.  A  part  of  the  wheat  was  delivered  to  A.  it  Co.  and  a  part 
to  B.  &  Co.,  without  the  knowledge  of  C.,  for  which  their  respective  re- 
ceipts were  taken.  Afterwards  A.  &  Co.  gave  drafts  on  E.  at  forty-five 
days,  for  the  grain  received  by  them,  which  the  receipt  stated  would  bo 
considered  as  so  much  money,  when  paid.  B.  it  Co.  also  gave  their  draft 
at  forty-five  days  on  F.  for  the  wheat  they  had  received,  in  the  acknow- 
ledgment of  which  it  was  set  out,  "  that  when  paid  it  would  be  in  full." 
On  receiving  those  drafts,  C.  gave  up  the  receipts  which  A.  it  Co.  and  B. 
&  Co.  had  given  for  the  grain.  Ihld,  that  by  the  acceptance  of  these 
drafts,  the  j"int  contract  of  the  partner  firms,  was  not  merged  in  their 
separate  responsibility.  Tyson  v.  r<>ll«ck,  37.x 

'2.  The  bare  seizing  land  in  execution  to  the  value  of  the  debt,  is  not 
a  satisfaction.  Gro  v.  The  Ihintiiii/d»n  ttunk,  42">. 

3.  A.  C.  sells,  by  articles  of  agreement  to  J.  M    a  tract  of  land,  for 
which  he  is  to  execute  a  conveyance  upon  the  payment  of  the  purcha.«e- 
money,  for  which  lie  takes  a  judgment-bond  from  J.  M.     Subsequently, 
B.  C.  enters   the  judgment-bond,   issues  a  fi.  fa.,  levies  upon   the   Innd, 
Which  is  afterwards  sold  by  the  sheriff,  and  B.  C.  becomes  the  purchaser 
for  a  sum  less  than  one-half  of  the  judgment,      llchi,  that  such  sale  and 
purchase  is  an  equitable  extinguishment  of  the  whole  amount  of  the 
judgment.      Char's  Exr  v.  Mathers'  Adm'r. 

4.  II.  S.  conveyed  a  house  and  lot  to  D.  L.,  in  consideration  whereof. 
D.  L.  executed  eight  single  bills,  of  fifty  dollars  each,  to  B.  T..  and  ei^ht 
to  J.  K.,  in  which  B.  T.  was  his  security.      I*.  L.  and  B.  T.  entered  into 


524  INDEX. 

EXTINGUISHMENT  AND  SATISFACTION. 

an  agreement,  by  which  the  deed  from  II.  S.  was  to  remain  in  the  hands 
of  B.  T.  as  a  security  for  the  payment  of  the  eight  notes  due  to  him,  and 
the  eight  notes  due  to  J.  K.  in  which  B.  T.  was  security.  B.  T.  aftert 
wards,  and  before  the  payment  of  the  said  notes,  died,  having  first  made 
a  will,  by  which  he  devised  to  the  wife  of  D.  L.  the  aforesaid  house  and 
lot.  Held,  that  such  devise  released  D.  L.  from  the  payment  of  the 
eight  single  bills  to  B.  T.,  but  did  not  release  him  from  the  payment  of 
the  eight  single  bills  to  J.  K.,  in  which  B.  T.  was  security.  Lemon  v. 
Thompson's  Adm'r,  482. 

FRAUD. 

CORPORATION,  2. 

1.  A  deed  procured  by  actual  fraud,  is  void,  and  cannot  be  confirmed 
by  subsequent  acts  or  declarations  of  the  grantor.     Chess  v.  Chess,  32. 

2.  A  mortgage  of  personal  property,  without  a  delivery  of  possession, 
or  the  other  indicia  of  ownership,  is  fraudulent  as  to  creditors,  and  upon 
the  death  of  the  mortgagor,  the  mortgagee  is  not  entitled  to  a  preference 
over  the  other  creditors,  to  have  his  debt  paid  first  out  of  the  proceeds 
of  the  mortgaged  property.      Welsh  v.  Heydeii's  Ex'r,  57. 

FRAUDS  AND  PERJURIES. 
BARGAIN  AND  SALE,  1. 

1.  A  parol  gift  of  a  lot  of  ground  by  a  father  to  his  married  daughter, 
accompanied  by  possession  and  valuable  improvements  made  by  the  hus- 
band at  his  own  expense,  vests  in  him  no  estate  in  addition  to  the  free- 
hold which  the  law  allows  him  in  right  of  his  wife.     Inyham  v.  Mason, 
389. 

2.  All  agreements  for  the  sale  and  purchase  of  land,  are  consummated 
and  extinguished  by  the  deed.     McKennan  v.  Doughman,  417. 

3.  If,  therefore,  the  grantor  makes  a  deed  to  the  grantee,  which  con- 
tains a  general  warranty  of  title,  he  cannot  afterwards  show  by  parol, 
that  an  agreement  was  made  a  few  days  before,  that  the  grantee  was  to 
patent  the  land.     Id. 

FOREIGN  LAWS  AND  JUDGMENTS. 

ATTACHMENT,  FOREIGN. 

Municipal  law  is  a  matter  of  compact,  and  as  such  the  construction 
of  foreign  statutes,  as  in  the  case  of  any  other  written  compact,  belongs 
to  the  court;  and  there  is  no  distinction  in  this  respect  between  the 
written  and  unwritten  law.  Sidwell  v.  Evans,  383. 

FORGERY. 

EVIDENCE,  7,  9. 

GRAIN  IN  THE  GROUND. 
VENDOR  AND  VENDEE,  2. 

GUARDIAN  AND  WARD. 
ORPHANS'  COURT,  1. 

1.  B.  K.,  in  1815,  was  appointed  guardian  of  J. ;  shortly  after,  J.  W., 
brother-in-law  of  J.,  and  administrator  of  the  estate  of  his  father,  settled 
his  administration-account,  by  which  a  balance  was  found  in  his  hands. 
In  1816,  B.  K.  received  part  of  that  balance  in  cash,  and  for  the  residue 
coming  to  his  ward,  took  J.  W.'s  bond  without  security.  At  that  time, 
J.  W.  was  in  good  circumstances ;  he  kept  a  store,  and  up  to  the  year 
1820,  continued  to  have  a  large  amount  of  real  and  personal  property  in 
his  possession  ;  then  he  sold  a  tract  of  lane}  which  he  had  bought  at  a 
very  high  price,  at  a  loss  of  about  £12,000,  and  shortly  after  made  an 
assignment  for  the  benefit  of  bin  creditors,  by  which  it  appeared  that  he 
was  largely  indebted.  The  assignees  paid  fifty-five  per  cent  of  his  debts. 
Up  to  the  spring  of  1820,  many  of  his  neighbors,  and  among  them  tho 
mother  and  another  brother-in-law  of  J.,  loaned  him  different  sums  of 


INDEX.  525 

GUARDIAN  AND  WARD. 

money.     Held,  that  B.  K.,  tho  guardian,  was  not  chargeable  with  the 
loss  upon  the  bond  he  had  taken  of  J.  W.    Konitjmacker  v.  A't /«;««/,  207. 

2.  More  ought  not  to  be  expected  from  guardians  than  common  pru- 
dential care  ;  they  should  not  be  made  liable,  unless  under  unfavorable 
circumstances,  their  acts  expose  them  to  the  animadversion  of  the  law, 
for  Hiipine  negligence,  showing  carelessness  of  duty,  and  of  the  ward's 
interest)  or  where  the  loss  is  occasioned  by  their  own  act  in  giving  credit 
without  taking  security.     Id. 

3.  So  if  a  guardian  has  in  his  hands  money  of  his  ward,  and    puts  it 
out,  he  will  generally  be  liable,  unless   he   take   .surety  in  the  note,  dec., 
not  HO  if  he  take  a  mortgage  on  land,  and  an  old  title,  unknown  at  tho 
time,  should  sweep  away  the  property  mortgaged.     Id. 

4.  But  where  the  fund  never  actually  came  to  the  hands  of  the  guar- 
dian, there  is  a  difference  ;  he  is  not  bound  instantly  to  sue  in  all  direc- 
tions if.  to  all  appearance,  the  money  is  safe.     LI. 

5.  Previously  to  the  settlement  of  an  account  in  the  Orphans'  Court, 
an  action  of  assumpsit  will  not  lie  by  the  ward  against  his  guardian  to 
compel  such  settlement  and  payment  of  the  balance.    Bowman  \.  Ilerr'a 
Kx'rs,  282. 

n.  A  settlement  made  by  the  guardian  once  in  every  three  years,  in 
pursuance  of  the  3d  section  of  the  Act  of  the  31st  of  March  1821,  is  not 
conclusive  upon  the  ward,  but  may  be  impeached  upon  the  final  settle- 
ment of  the  account  when  the  ward  arrives  at  full  age.  Id. 

1.  Upon  the  death  of  a  guardian  before  the  settlement  of  his  account, 
his  representatives  may  be  cited  and  compelled  to  settle  it.  Id. 

HABEAS  CORPUS. 
ERROR,  7. 

HIGHWAY. 

ROADS  AND  BRIDGES. 

HUSBAND  AND  WIFE. 

EXECUTORS  AND  ADMINISTRATORS,  0.  EXTINGUISHMENT  AND  SATISFAC- 
TION, 4.  FRAUDS  AND  PERJURIES,  1.  INTESTATE  AND  DECEDENT,  5. 
LIMITATIONS,  4.  PARENT  AND  CHII-D,  2 

1.  Wherever  a  husband  and  wife  can  sue  or  be  sued  by  adversary 
process,  an  amicable  action  can  be  entered,  and  she  and  her  rights  are 
as  much  bound  as  if  the  proceeding  had  been  adversary.     Gratz  \.  Phil- 
ips, 333. 

2.  An   assignment  by  a  husband,  under   tho   insolvent  laws,  of  his 
wife's  choses  in  action,  defeats  her  right  of  survivorship,  in  case  he  dies 
before  they  arc  reduced  into  possession.     Kichirine  v.  Jliim,  o~3. 

3.  For  civil  purposes,  reputation  and  cohabitation  are  sufficient  evi- 
dence of  marriage.     Senser  v.  Jiowcr,  450. 

INCUMBRANCE. 

VENDOR  AND  VENDEE. 

INFANT. 

PARENT  AND  CHILD. 

INQUISITION. 
EXECUTION. 

INSOLVENT. 

HUSIIAND  AND  WIFE,  2.     LIMITATIONS,  S.     ORPHANS'  COURT.  3. 

1.  The  trustee  of  an  insolvent  debtor  cannot  sustain  an  action  in  right 
of  the  insolvent  without  having  first  given  bond,      liinncl  v.  Stocrer,  2<>2. 

2.  A  bond  executed  with  security  and  tiled  upon  tho  trial  of  the  cause 
is  not  sufficient.      /(/. 

3.  In  the  case  of  an  application  for  the  benefit  of  the  insolvent  laws. 


526  INDEX. 

INSOLVENCY. 

the  decree  of  the  court,  "  Proceedings  quashed  by  order  of  the  court," 
is  conclusive  evidence  that  the  applicant  did  not  comply  with  the  terms 
of  his  bond  ;  and  the  cause  of  such  order  cannot  be  inquired  into  collat- 
terally.  Heilner  v.  Bast,  '2f>l. 

4.  It  is  the  duty  of  the  applicant  to  surrender  himself  to  prison  if  he 
fails  to  comply  with  all  things  required  by  law  to  entitle  him  to  be  dis- 
charged.    Id. 

5.  Qucere.    Whether  the  court  has  power  to  recommit  the  applicant, 
except  he  has  been  guilty  of  fraud.     Id. 

6.  Alter  an  insolvent  bond  is  forfeited,  the  issuing  of  an  als.  ca.  sa. 
by  the  same  plaintiff,  upon  which  the  insolvent  gave  another  bond,  and 
was  subsequently  discharged  by  law,  is  not  a  waiver  of  his  right  of  ac- 
tion upon  the  first  bond.     Id. 

7.  The  Statute  of  Limitations  docs  not  run  against  debts  due  by  an  in- 
solvent debtor.     Lapse  of  time,  much  greater  than  that  allowed  by  the 
statute,  may  raise  a  presumption  of  the   payment  of  such  debts  ;  but 
when  the  debtor  returns  no  fund  but  a  debt  to  become  due  on  a  future 
contingency,  no  presumption  of  payment  would  arise  before  the  fund 
came  to  hand.     Feathcrs's  Appeal,  'A'l'l. 

8.  The  trustee  of  an  insolvent  debtor,  having  in  his  own  name  sued  a 
mortgage  given  to  the  insolvent,  obtained  a  judgment  and  issued  a  levari 
facias  thereupon  ;  by  virtue  uf  which   the  sheriff  sold   the  mortgaged 
premises  and  received  the  purchase-money  :   Held,  that  in  a  suit  brought 
against  the  sheriff'  to  recover  the  money  from  him,  he  cannot  set  up  as  a 
defence  that  the  trustee  had  never  given  bond  as  required  by  the  Act  of 
Assembly.     Dean  v.  Patton,  437. 

INTESTATE  AND  DECEDENT. 

E.XECUTOTS  AND  ADMINISTRATORS,  1-5.  PLEADING,  7-9.  PRINCIPAL 
AND  SURETY,  1.  SHERIFF'S  SALE,  3. 

1.  A.,  leaving  several  children,  devised  to  his  son  B.  a  tract  of  land, 
he  paying  !?")0  an  acre  therefor  ;  to  his  son  C.  a  tract  of  land,  he  paying 
SOU  per  acre  therefor  ;  the  amount  of  money  so  payable  to  be  equally 
distributed  among  all  his  children.  B.  took  under  his  father's  will, 
made  several  payments  according  to  its  direction,  and  died,  leaving  chil- 
dren ;  his  administrators  having  obtained  from  the  Orphans'  Court  an 
order  to  sell  his  real  estate  for  the  payment  of  debts,  sold  the  same  sub- 
ject to  the  payment  of  the  balance  of  the  money  due  under  his  father's 
will:  lltld,  that  the  administrators  sold  and  the  purchaser  took  nothing 
but  the  land,  and  was  nut  entitled  to  the  interest  which  B.  had  in  the 
land  of  his  brother  C.  under  his  father's  will.  Hnje  v.  Ileye,  83. 

'1.  A  purchaser  of  land,  sold  by  an  administrator,  by  an  order  of  the 
Orphans'  Court,  takes  the  land  discharged  of  the  lien  of  a  legacy.  Mc- 
Lana/ian'.i  Ex'rs  \.  MrLaiKifi'in's  Adin'r,  %. 

'.).  In  Pennsylvania,  where  lands  are  assets  for  the  payment  of  debts, 
it  is  most  just  to  afford  the  terre-tenant,  who  is  the  party  to  tie  affected, 
an  opportunity  to  contest  the  debt,  arid  the  plaintiff  may  do  so.  Hiiiics 
v.  Jafolin,  lf>2. 

4.  J.  M.  obtained  patents  for  his  real  estate,  and  executed  to  the  Com- 
monwealth mortgages  for  the  purchase-money,  and  died.     Administra- 
tion  upon   his  estate   issued  to  his  son.     The  real  estate,  was  divided, 
appraised,  and  taken  by  the  son,  and  the  other  children,  in  purparts  of 
unequal  quantity  and  value.     It  was  appraised  at  its  full  value  without 
any  deduction  on  account  of  the  purchase-money.     The  administrator 
paid  the  purchase-money  out  of  the   personal  estate :    field,  that  the 
payment  was  a  good  one,  and  the  administrator  entitled  to  a  credit  for 
It.     King  v.  Morrison's  Adrn'r,  188. 

5.  Where  under  proceedings  in  partition  in  the  Orphans'  Court  to  di- 
vide the  lands  of  S.  the  same  was  appraised  and  taken  by  M.,  who  had 


INDEX.  527 

INTESTATE  AND  DECEDENT. 

married  one  of  the  children  of  S.,  and  who  acknowledged  recognisances 
to  the  other  children  for  their  shares:  the  wife  of  M.  can  claim  nothing 
against  her  husband  or  a  purchaser  of  his  estate,  but  the  undivided  tdiare 
which  descended  to  her,  and  which  remains  specifically  in  land  after  all 
the  purposes  of  distribution  have  been  answered.  Johnson  v.  Mutton, 
371. 

6.  An  administration  account  stated  and  filed  in  the  register's  office, 
is  not  a  compliance  with  a  recognisance  conditioned   for  the  settlement 
of  an  account,  and  upon  suit  upon  that  recognisance  by  one  of  the  heirs 
of  the  estate  which  the  administrator  represented,  he  is  entitled   to  re- 
cover nominal  damages,  although  the  jury  may  believe  that  his  interest 
in  the  estate  had  been  paid  to  him.      Commonwealth  v.  Henderson,  401. 

7.  A  mortgage  unrecorded  in  the  lifetime  of  the  mortgagor,  has  no 
preference  over  other  specialty  debts,  out  of  the  proceeds  of  the  sale  by 
the  sheriff  of  the  mortgaged  premises,  after  the  decease  of  the  mortga- 
gor.    Adams'  Appeal,  447. 

JOINT  PURCHASERS. 
PARTNERSHIP,  4. 

Joint  purchasers,  without  an  agreement  of  partnership,  would  not  be 
entitled  to  the  remedies,  nor  subject  to  the  responsibilities  of  partners. 
Campbell's  Exr's  v.  Colhuun's  Adm'rs,  140. 

JOINT  OR  SEVERAL  LIABILITY. 

EXTINGUISHMENT  AND  SATISFACTION,  1. 

JUDGMENTS. 

EXTINGUISHMENT  AND  SATISFACTION,  3.  PLEADING.  2.  PRACTICE, 
1,  7.  SHERIFF'S  SALE,  1,  2,  (J.  TERRE  TENANTS,  1.  TRUSTS,  5,  6,  7. 
WILLS,  2. 

1.  The  revival  of  a  judgment  by  an  amicable  scire  facia*  post  annum 
et  diem,  creates  a  lien  upon  the  real  property  of  the  defendant,  acquired 
after  the  entry  of  the  original  judgment.      Clippinger  v.  Mi/ltr,  64. 

2.  A  seire  facias  continues  the  lien  of  a  judgment  upon  land,  although 
the  occupiers,  who  are  lessees  from  year  to  year  of  the  defendant,  have 
not  had  the  writ  served  upon  them.     Id. 

'A.  M.  obtained  judgment,  in  November  1808,  upon  which  he  issued  a 
sci.  fa.  to  August  term  1810,  to  which  the  plea  of  payment  was  put  in, 
and  issue  joined  thereon.  His  counsel  was  appointed  president  judge, 
and  in  181(5  a  list  of  causes  in  which  he  had  been  concerned,  and  among 
them  this,  was  certified  for  a  special  court.  On  this  list  the  words  "  set- 
tled, says  Mr.  Duncan,"  were  written  in  the  handwriting  of  the  judge, 
in  the  entry  of  this  cause  ;  and  again,  on  another  list,  certified  in  1M7, 
the  word  "  settled."  Mr.  D.  was  counsel  for  the  defendant,  and  these 
entries  were  never  transferred  from  the  trial-lists,  but  in  \ *'!'•'•  they  were 
on  motion  ordered  to  be  stricken  out,  and  in  1S25  a  verdict  and  judgment 
rendered  for  the  plaintiff:  Held,  that  the  lien  of  the  judgment  remained, 
and  was  not  postponed  to  a  judgment  obtained  airainst  the  defendant 
after  these  entries  had  been  made,  and  before  they  had  been  stricken 
out.  Moore's  Adinrs  v.  Kline,  I-'.'. 

4.  A  bond,  with  a  warrant  of  attorney  to  confess  judgment,  authorizes 
the  entry  of  but  one  judgment :  the  entry  of  a  second,  upon  the  snmo 
warrant,  is  wholly  irregular.  l'/ri<-h  v.  \nneida,  24.">. 

").  The  issuing  of  a  fieri  facias  within  a  year  and  a  day.  and  a  levy 
upon  personal  property,  subject  to  former  levies,  or  on  personal  property 
as  per  inventory  annexed,  or  a  return  of  nulla  bona,  does  not  keep  alive 
the  lien  of  a  judgment  beyond  live  years,  from  the  return-day  of  the 
term  to  which  it  is  entered,  lit/z's  Af>f>enl,  271. 

(>.  Upon  a  transcript  of  the  judgment  of  a  justice  the  peace,  entered 
as  a  lien  upon  land,  the  five  years  within  which  a  scire  facias  shall  issue, 


528  INDEX. 

JUDGMENTS. 

to  preserve  the  lien,  must  be  computed  from  the  first  day  of  the  term  to 
•which  it  is  entered,  and  not  from  the  actual  date  of  the  entry.  Bttz'a 
Appeal,  271. 

7.  Executors  who  were  authorized  to  sell  the  real  estate  of  their  tes- 
tator, for  the  payment  of  certain  legacies,  sold  the  same,  and  afterwards 
settled  their  account  in  the  Orphans'  Court,  by  which  it  appeared  there 
were  assets  to  pay  the  legacies ;  the  legatees  afterwards  filed  refunding 
bonds,  and  brought  suits  against  them  as  executors,  and  obtained  judg- 
ments :  Held,  that  such  judgments  are  not  liens  on  the  real  estate  of  the 
executor.     McCulloch  v.  Sample  s  /,'xYs,  422. 

8.  A  judgment  entered  upon  a  bond,  in  the  penalty  of  §100,  with  a 
warrant  to  confess  a  judgment,  having  a  condition  thereunder  written, 
that  the  obligor  will  pay  a  fine  and  bill  of  costs,  then  uncertain  as  to 
amount,  is  valid.     Holden  v.  Jiull,  400. 

9.  The  order  of  the  Court  of  Common  Pleas,  opening  a  judgment  and 
letting  the  defendant  into  a  defence,  does  not  destroy  the  lien  from  the 
original  date  of  its  entry.     Stdnbridges  Appeal,  481. 

10.  The  land  of  D.  II.  having  been  levied,  and  advertised  for  sale  by 
the  sheriff  on  a  venditioni  exponas,  before  the  day  of  sale,  D.  II.,  by  a 
verbal  agreement,  transferred   the  surplus  of  what  the  land  might  sell 
for,  beyond  the  payment  of  encumbrances,  to  L.  S.,  to  indemnify  him 
against  certain  liabilities.     Two  days  after  the  sale,  before  the  deed  was 
acknowledged,  and  before  all  the  purchase-money  was  paid,  A.  D.  II. 
entered  a  judgment  against  D.  II.  and  issued  a  fi.  fa.  with  directions  to 
the  sheriff  to  retain  the  surplus:  Held,  that  the  judgment  entered  after 
the  day  of  sale  was  not  a  lien  on  the  land ;  and  the  fi.  fa.  could  not  take 
the  money,  because  the  agreement  between  D.  II.  and  L.  S.  was  a  legal 
transfer  of  it  before  it  issued.     Hahn  v.  Smith,  484. 

JUROR. 

JURY. 

JURY. 

ERROR.  18.     EVIDENCE.  19.     PRACTICE,  4. 

The  court  sustained  the  challenge  of  a  juror  on  the  ground  that  he 
was  subpoenaed  as  a  witness  to  impeach  the  credit  of  another  important 
witness,  who  was  to  give  evidence  in  the  cause  in  which  he  was  called 
as  a  juror.  Chess  v.  Chess,  32. 

JUSTICE  OF  THE  PEACE  AND  ALDERMAN. 

COSTS.  1,6.    JUDGMENTS,*}.    OFFICE  AND  OFFICER,  1.    RECOGNISANCE.!. 

1.  A  justice  of  the  peace,  being  a  judicial  officer,  must  have  his  court 
or  place  of  administering  justice:  and   in  order  to  the  validity  of  an 
amicable  judgment  upon  his  docket,  the  party  confessing  the  same  must 
be  l>efore  him,  and  at  his  office.      Kin<j  v.  Kimj's  Adm'r,  15. 

2.  In  a  case  which  originated  before  a  justice  of  the  peace,  from  whose 
judgment  there  was  an  appeal  to  the  Common  Pleas,  where  a  verdict 
and  judgment  was  rendered  for  a  sum  exceeding  the  jurisdiction  of  the 
justice,  this  court  affirmed  the  judgment  upon  the  plaintiff's  releasing 
the  excess.     Darrah  v.  Warwick,  21. 

3.  A  justice  of  the  peace  has  power  to  supersede  an  execution  issued 
by  him  ;  and  such  supersedeas  will  exonerate   the  constable  from   lia- 
bility,    ft/tuman  v.  Pjoittz,  61. 

LANDS  AND  LAND  OFFICE. 

SURVEYOR,  1.     PARENT  AND  CHILD,  2. 

1.  A  precisely-descriptive  warrant  must  be  followed  up  with  reason- 
able attention,  in  order  to  give  title  from  its  date.     So  01  a  vague  war- 
rant from  the  time  of  survey.      Chambrrx  v.  Mijfiin,  74. 

2.  If  an   owner  of  a   vague  or  removed   warrant   has  suffered  it  to 
remain   unreturned  for  more  than   twenty-one  years,  and  during  that 


INDEX.  529 

LAND  AND  LAND  OFFICE. 

time  has  exercised  no  not  of  ownership  upon  the  land,  the  state  or  any 
person  has  a  right  to  consider  it  as  derelict,  and  whoever  purchases  and 
pays  for  thu  land,  under  such  circumstances,  has  a  good  title.  C'/tam/strs 
v.  MiJ/lin,  74. 

3.  Qucere.    Whether  the  law  is  not  the  same  in  some  cases,  as  to  pre- 
cisely-descriptive warrants.     /'/. 

4.  An  application  and  survey  may  be  abandoned,  but  whether  or  not, 
depends  on  the  facts  to  be  found  by  the  jury.     The  payment  of  fees  of 
office,  of  surveying  fees,  and  returning  the  survey,  are  facts  tending  to 
repel  the  presumption  of  abandonment.    Addleinan  v.  Ma*terson,45\. 

5.  An  application  obtajned  in  17oO,  and  the  land  circumscribed  by  a 
survey,  marked  on  the  ground,  but  the  owner  of  the  survey  neglects  to 
have  it  returned  and  refuses  to  pay  the  surveying  fees,  and  it  continued 
in  this   way  until    1785,  when   a  warrant  issued  for  the   same   land   to 
another:    //«/</,  that  the  title  of  the  warrantee  shall  be  preferred.     /</. 

G.  When  it  was  proposed  to  sell  depreciation  lands  at  auction,  the 
country  was  divided  into  districts,  and  the  lands  surveyed.  And  when 
the  plan  of  sale  by  auction  was  abandoned,  and  the  country  thrown  open 
to  settlement  or  sale  in  the  ordinary  mode  by  warrant  from  the  Land 
Office,  the  country  was  again  divided  into  districts,  h'rans  v.  Jitutty, 
48(J. 

7.  It  is  understood  that  the  boundaries  of  these  districts  of  17'J-  were 
not  the  same,  in  general,  with  the  boundaries  of  the  depreciation  dis- 
tricts.    Id. 

8.  If  the  surveyors  of  adjoining  districts  agreed  upon  the  dividing  line 
between  their  respective  districts,  or  adopted  a  line  already  run,  such 
line  is  to  be  considered  the  line  between   them,  although  it  should  be 
ascertained  by  survey  to  give  the  district  less  or  mon*  than   by  law  was 
allotted    to    a    district:    and    surveys    made    by    the    surveyors    of  the 
respective  districts  within  such   line,  in  their  respective  district*,  are 
good.      Id. 

U.  After  the  lapse  of  forty  years,  evidence  is  not  required  how  such 
line  was  run,  when  run  or  by  whom  ;  on  proof  that  the  respective  sur- 
veyors had  surveyed  to  such  ancient  line  as  a  boundary  in  their 
respective  districts,  it  should  be  considered  as  the  regular  legal  district 
line.  Id. 

10.  The  mode  of  appropriating  donations  in  land  to  the  officers  and 
soldiers  of  the   Pennsylvania  line,  in  the  Revolution,  adopted  after  the 
war.      Little  v.  Ho<i,,e,  501. 

11.  The  officers  of  the  government,  intrusted  with  the  appropriation 
of  donation  land,  could  at  no  time  give  a  patent  to  an  applicant  for  any 
tract  he  might  ask.     Id. 

\'2.  A  patent  for  a  tract  of  donation  land  is  void,  unless  given  after 
drawing,  and  for  the  number  drawn.  /(/. 

13.  If  one  man  drew  a  number,  and  a  patent  for  tho  lain!  designated 
by  that  number  wore  issued  to  another  man,  such  patent  would  be  void  ; 
and  the  man  who  drew  the  number  would  be  entitled  to  the  land.      Id. 

14.  Where  any  officer  or  soldier  once  drew  a  number,  in  no  event  could 
he,  or  any  one  in  his  name  or  right  afterwards  draw  another  tract.      /</- 

15.  Independent  of  any   other  evidence,  a  patent   for  donation  land 
would  be  presumptive  evidence  that  the  patentee  bad  drawn  the  numl>er 
for  which   such  patent  had  issued   to  him;  although  his  name  did  not 
appear  in  the  controller's  list,  or  on  the  general  draft.      Id. 

16.  Hut  such  presumption  would  not  prevail  where  his  name  did  appear 
in  another  number  and  a  patent  had  issued  to  him  for  that  number,  and 
where  the  number  for  which  his  patent  issued,  without  having  his  name 
in  it,  was  subsequently  drawn  from  the  wheel   in   the  name  of  another. 
Id. 

1  p.  &  W.—34 


530  INDEX. 

LANDLORD  AND  TENANT. 

WAY-GOING  CROP,  1,  '2. 

1.  A  purchaser  at  sheriff's  sale  before  the  deed  is  acknowledged,  has 
not  such  u  title  to  the  land  struck  down  to  him,  as  will  authorize  him 
to  give  a  lease  of  the  premises  ;  and  if  he  does  give  such  a  lease  to  the 
defendant  as  whose  property  it  was  sold,  it  will  not  create  the  relation 
of  landlord  and  tenant  between  them,  so  as  to  estop  the  lessee  from  dis- 
puting the  title  of  the  lessor.  Hall  v.  Jiennei;  402. 

'2.  The  general  rule  of  law,  that  a  tenant  shall  not  dispute  the  title 
of  his  landlord,  is  restricted  to  cases  in  which  the  lease  has  been  fairly 
obtained,  without  any  misrepresentation,  management  or  fraud.  Id. 

LEGACY. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  To  recover  a  legacy  charged  upon  land,  the  most  approved  form,  is 
to  bring  the  suit  against  the  executors  and  the  terre-tenants  of  the  land 
generally  by  name.  McLanahan  v.  McLanahan,  Adm'r,  96. 

'2.  If  the  terre-tenants  have  not  all  been  summoned,  the  plaintiff  may 
pray  a  writ  to  summon  the  person  alleged  to  be  terre-tenant ;  and  by  this 
means  he  may  be  made  a  party  in  the  same  manner  as  if  he  had  been 
summoned  or  returned  by  the  sheriff,  as  terre-tenant  of  the  land.  Id. 

3.  When  a  testator,  by  his  will,  blends  his  real  and  personal  estate,  he 
thereby  charges  his  land  with  the  payment  of  legacies.     Id. 

4.  Parol  evidence  of  the  declarations  of  a  testator  at  the  time  the  will 
was  written,  may  be  received  in   evidence,  to  support  the  presumption 
that  the  legacy  was  redeemed  by  the  testator  in  his  lifetime.     Bailey  v. 
Snyder's  Ex'rs,  126. 

LIBER  A  RI  FACIAS. 

EXECUTION. 

LIENS. 

JUDGMENT.     RECOGNISANCE.     WILL,  2. 

Lien  creditors  are  to  look  to  the  application  of  the  fund  on  which  they 
have  a  lien,  at  their  peril :  everything  which  a  due  attention  to  their 
interest  would  have  entitled  them  to  receive  being  considered  as  paid  by 
operation  of  law,  as  regards  the  debtor.  Filings  Adm'r  v.  The  Cum- 
jfiomceallh,  240. 

LIMITATIONS. 

1.  Every  owner  is  in  possession  until  some  person  actually  enters  on 
him  under  an  adverse  claim,  and  the  Statute  of  Limitations  begins  to 
run  from  the  time  actual  adverse  possession  is  taken  only.     Carlisle  v. 
Stiller,  6. 

2.  The  disability  of  marriage  cannot  be  added  to  the  prior  disability 
of  infancy,  to  avoid  the  operation  of  the  statute.     Id. 

3.  W.  L.  owned  a  tract  of  land  containing  two  hundred  and  eighty- 
seven  acres,  under  an  application  and  survey,  of  which   he  never  had 
actual  possession,  and  died  in  17*4,  leaving  issue  Elizabeth  in  her  minor- 
ity, who  at  the  age  of  twenty  married  J.  C.,  in  April  17*7.     At  the  time 
of  the  death  of  W.  L.,  all  but  eighty  acres  of  the  said  tract  was  held 
adversely  by  C.  S.  under  a  younger  title,  by  improvement,  warrant  and 
survey,  who  in  17'.>3  bought,  under  another  title,  the  said  eighty  acres, 
and  took  possession,  which  was  held  by  those  claiming  under  him.     J. 
C.  intermarried  with  E.,  died  in   1815.  and,  to  February  term  1818,  the 
said  E.  C.  brought  ejectment:  Held,  that  as  to  HO  much  of  the  tract  of 
which  said  C.  S.  had  adverse  possession  at  the  death  of  W.  L.,  the  said 
E.,  his  daughter,  was  barred  by  the  Statute  of  Limitations,  but  that  as 
to  the  eighty  acres  of  which  the  said  C.  S.  took  adverse  possession  in 
17'.'-j,  she  was  not  barred.     Id. 

4.  When  the  right  to  the  eighty  acres  descended  to  E.  C.  in  law,  she 
acquired  the  possession,  and  the  true  construction  of  the  act  of  liiuita- 


INDEX.  531 

LIMITATIONS. 

tions  gives  a  feme  covert  the  same  time  when  adverse  possession  is  taken 
of  her  lands  while  Hhe  is  covert,  as  it  would  have  giv<-n  her  if  there  had 
been  adverse  possession  and  the  lands  had  descended  to  her  when  she 
was  covert.  Carlisle  v.  Miller,  6. 

5.  The  acknowledgment  of  a  debt,  barred  by  the  Statute  of  Limita- 
tions, by  a  partner  after  the  dissolution  of  the  partnership,  does  not 
operate  to  revive  the  debt,  and  avoid  the  Statute  of  Limitations  as  to  the 
other  partners.  Keariyht  v.  Craii/head,  \'.'>1 . 

0.  If  one  joint  purchaser  pay  the  accruing  interest  on  the  purchase- 
money,  from  time  to  time,  a  right  of  action  for  a  moiety  of  each  payment 
would  arise  instantly  to  the  other  joint  purchaser,  which  would  be  barred 
by  the  lapse  of  six  years  from  the  payment  before  suit  brought.      Camp- 
bell's Kx'r  \.  Colhoans  Adm'r,  14U. 

7.  The  redemption  of  a  pawn  is  not  affected  by  the  Statute  of  Limita- 
tions, which  runs  only  from  the  conversion  of  the  thing  pawned.     But 
a  simple  contract  debt  is  not  protected  from  the  statute,  because  accom- 
panied with  a  pledge  as  a  collateral  security,     floyd's  Adm'r  v.  Wilson, 
216. 

8.  By  the  express  provision  of  the  Insolvent  Law,  the  Statute  of  Lim- 
itations does  not  run  against  debts  due  by  an  insolvent  debtor.   Peat  tiers' s 
Appeal,  322. 

(J.  In  an  action  for  money  had  and  received,  brought  to  April  t«vrrn 
1<S2">,  to  recover  the  amount  paid  on  an  article  of  agreement  for  the  sale 
of  land,  which  was  entered  into  between  the  parties,  in  the  year  IMMI, 
where  nothing  had  been  done  by  the  defendant  until  lvJ4,  which  would 
entitle  the  plaintiff  to  rescind  the  contract,  the  Statute  of  Limitations  is 
insufficient  to  bar  the  action.  Leinhart  v.  forringer,  4'J2. 

MALICIOUS  PROSECUTION*. 

1.  In  an  action  for  maliciously  siting  out  a  capias  ad  respondendum, 
and  holding  the  defendant  to  bail,  is  not  to  be  favored  ;  and  clear  proof 
of  want  of  probable  cause  is  necessary  to  support  it.     Zearimjs  Ex'rs 
v.  Jieas/tore,  '2'.\'2. 

2.  As  a  general  rule,  it  may  be  laid  down  that  such  an  action  cannot 
be  supported,  when,  in  the  original  action,  the  defendant  was  obliged  to 
set  up  some  collateral  matter  by  way  of  defence,  which  did  not  appear  on 
the  declaration  or  the  face  of  the  instrument  declared  on.     Id. 

MORTGAGE. 

AGENT  AND  FACTOR,  1.  ASSIGNEE,  1,  2.  FRAUD,  2.  INTESTATE  AND 
DECEDENT,  7.  SHERIFF'S  SALE,  1,  I). 

MUNICIPAL  LAW. 

FOREIGN  LAWS  AND  JUDGMENTS,  1. 

NEW  TRIAL. 

PRACTICE,  5. 

OATH. 

ERROR,  10.     SHERIFF'S  SALE,  10. 

The  prothonotary  of  the  Court  of  Common  Pleas  has  no  power  to  ad- 
minister the  oath  required  to  obtain  a  writ  of  error.  J'uinrcy  v.  Lftcis, 
14. 

OFFICE  AND  OFFICER,  DE  FACTO  AND  DE  .Il'KE. 

EVIDENCE,  f>.     PROTHONOTARIKS  AND  CLERKS  or  COTRTS.  2. 

Wherever  a  person  has  color  of  authority,  and  acts  under  a  commission 
from  the  appointing  power,  but  which,  it  may  be  alleged,  has  been  for- 
feited by  some  act,  perhaps  of  an  oi|uivival  nature,  in  all  such  cases  the 
validity  of  the  commission  cannot  be  examined  in  a  suit  in  which  he  is 
not  a  party.  If  a  person  usurps  an  authority  to  which  ho  has  no  title  or 
color  of  title,  his  acts  would  be  simply  void.  Hut  a  colorable  title  to  an 


532  INDEX. 

OFFICE  AND  OFFICER,  DE  FACTO  AND  DE  JURE. 

office  can  be  examined  only  in  a  mode  in  which  the  officer  is  a  party,  and 
before  the  proper  tribunal,  the  Supreme  Court,  in  whom  by  Act  of  As- 
sembly all  the  authority  of  the  Kind's  Bench  is  vested.  It  is  not,  there- 
fore, competent,  when  a  deposition  is  offered  in  evidence,  and  the  com- 
mission of  the  justice  of  the  peace,  before  whom  it  was  taken,  is  shown, 
to  prove  that,  after  he  was  commissioned,  he  removed  out  of  his  proper 
county,  where  the  deposition  was  taken,  and  thereby  vacated  his  office. 
McJiim  v.  Somers,  297. 

OFFICIAL  BOND. 

EVIDENCE,  5.     PRESCRIPTION*  AND  PRESUMPTION,  2.     SHERIFF,  1. 

ORPHANS'  COURT. 

INTESTATE  AND  DECEDENT,  5.     GUARDIAN  AND  WARD. 

1.  The  Orphans'  Court  has  full   power  and  authority  to  settle  the  ac- 
count of  a  guardian,  and  if  a  balance  is  found  to  be  in  his  hands  when 
the  ward  arrives  at  full  age.  to  compel  the  payment  of  it,  by  attach- 
ment or  sequestration  of  the  goods  or  lands  of  the  accountant.    Jioicman 
v.  Herr's  Ex'rs,  282. 

2.  Upon  the  death  of  a  guardian  before  the  settlement  of  his  account, 
his  representatives  may  be  cited  and  compelled  to  settle  it ;  and  the  Or- 
phans' Court  may  exercise  the  same  power  to  compel  them  to  pay  over 
the  balance  as  they  would  against  the  guardian  himself.     Id. 

3.  A  fund  belonging  to  J.  0.  was  brought  into  the  Orphans'  Court  for 
distribution.     J.  O.  had  taken  the  benefit  of  the  insolvent  laws  in  1800  ;' 
the  assignees  then  appointed  had  not  qualified,  and  were  dead :    Held, 
that  the  Orphans'  Court  should  retain  this  fund  until  the  next  term  of 
the  court  at  which  he  was  discharged,  to  have  assignees  appointed  to 
receive  it,  but  if  none  were  then  appointed,  it  should  be  paid  to  J.  0. 
Feathers' s  Appeal,  322. 

4.  When  an  appeal  is  taken  from  a  decree  of  the  Orphans'  Court,  it 
would  be  wrong  in  that  court  to  order  the  money  to  be  paid  over  under 
that  decree,  while  the  recognisance  is  writing,  or  the  party  bringing  in 
his  bail.     Id. 

PARENT  AND  CHILD. 

1.  In  all  cases  of  conflicting  presumptions  on  the  subject  of  legitimacy, 
that  in  favor  of  innocence  shall  prevail.      Xeii.ier  v.  Baicer,  4">0. 

2.  The  alienation  of  an  improvement  right  by  the  widow,  after  the 
death  of  her  husband,  leaving  an  infant  two  yetirs  of  age,  will  not  bar 
the  right  of  such  infant  to  recover  the  land  when  it  arrives  at  full  age,  even 
if  the  consideration  received  by  the  widow  should  have  been  applied  to 
the  support  and  maintenance  of  the  child.     Id. 

'.'>.  (Jita-re,  Whether  there  can  be  an  abandonment  of  a  right  by  an 
infant.  Id. 

PAROL  AGREEMENT. 

FRAUDS  AND  PERJURIES.  1-3. 

PARTITION. 
COSTS,  4. 

PARTNERSHIP. 

EXTINGUISIIJIENT  AND  SATISFACTION,  1.  JoiNT  PURCHASER,  1.  LIM- 
ITATIONS, 5.  PLEADING,  11-13. 

1.  Campbell  in  1SU5  bought  of  W.  5000  acres  of  land  at  $4  per  acre 
The  purchase  was  at  a  credit  of  eight  years,  with  interest  at  three  per 
cent.,  after  which  the  principal  was  to  be  paid  at  three,  six  and  nine 
years,  reserving  six  per  cent,  on  unpaid  balances.  By  settlement  made 
in  lxl'.»  Campbell  had  paid  the  interest  to  W.  up  to  that  time,  and 
$4429.42  on  account  of  principal.  The  liability  of  Colhoun  to  contribute 


INDEX.  503 

PARTNERSHIP. 

for  the  payments  of  Campbell,  whether  more  or  le«s  than  hi*  propor- 
tional part,  would  depend  on  whether  the  parties  hail  agreed  to  appor- 
tion the  profit  or  loss,  which  was  a  fact  for  the  jury.  CnmpltrU'n  Ax'.  .1 
v.  Colhouii's  Adm'rs,  140. 

2.  There  may  be  a  partnership  to  trade  in  land,  and  it  may,  as  in  any 
other  case,  be  limited  to  purchasing  only,  the  profit  and  loss  bciriL'  di- 
visible as  stock  ;   but  this  relation  does  not  necessarily  or  naturally  ari-e 
from  the  bare  circumstance  of  a  joint  purchase.     Id. 

3.  If  Campbell,  as  a  joint  purchaser,  paid  all  the  interest  as  it  Ix-eame 
due,  a  right  of  action  for  a  moiety  of  each  payment  accrued  instantly  to 
him  against  Colhoun,  which  would  he  barred  by  the  Statute  of  Limita- 
tion when  six  years  had  run  before  suit  brought.     I<1. 

4.  In  a  case  of  partnership  the  joint  effects  belong  to  the  firm  and  not 
to  the  partners,  each  of  whom   is  entitled  only  to  a  share  of  what  may 
remain  after  the  payment  of  the  partnership  debts,  and  no  irreater  in- 
terest can  he  derived  from  a  voluntary  assignment  of  his  share  or  a  sale 
of  it  on  execution.      Doner  v.  Xlanjf'er,  1'J.S. 

5.  A  preference  exists  in  favor  of  the  joint  creditors  of  a  firm,  founded 
on  no  merits  of  their  own,  but  on  the  equity  which  springs  from  the  na- 
ture of  the  contract  between  the  partners  themselves.      /,/. 

(>.  With  the  single  exception  of  a  joint  commission,  whenever  the  part- 
ners are  not  individually  involved,  the  joint  creditors  have  no  preference. 
Id. 

7.  A  separate  execution  creditor  sells  not  the  chattels  of  the  partner- 
ship, but  the  interest  of  the  partner,  encumbered  with  the  joint  debts  ; 
and  the  joint  creditors  have  therefore  no  claim  to  the  proceeds.     /'/. 

8.  Where  the  separate  creditors  of  each  partner  proceed  by  execution, 
the  sale  of  the  partnership  effects,  under  the  execution  of  the  separate 
creditor  of  one  partner*  passes  the  interest  of  that  partner  subject  to  the 
equity  of  his  co-partner,  and  the  execution-creditor  is  entitled   to  the 
price.     This  equity,  together  with  the  remaining  interest  of  the  other 
partner,  passes  by  a  sale  under  execution  of  his  separate  creditor,  where 
the  purchaser  of  the  effects  is  the  same ;  and  this  whether  the  sales  be 
made  consecutively,  or  at  the  same  time.     Id. 

V>.  Qna-re.  What  would  be  the  effect  where  there  are  separate  pur- 
chasers of  the  shares  of  the  respective  partners.  /-/. 

10.  One  partner  cannot  bind   his  co-partner  by  deed,  although  it  be 
given  in  a  transaction  in  the  course  of  the  business  of  the  firm,  and  the 
benefit  of  the  contract  be  received  by  the  firm.     Hurt  \.    Wtthfrs.  '2>~>. 

11.  Kach   partner  is  separately  the  agent  of  the  ivst.  with  autlmrity 
to  pay  the  whole  or  any  part  of  the  debts,  and  payment  by  him   is  pav 
ment  on  joint  account.      Tyson  v.  l'ullf>ck,  •)7-r>. 

PATENT. 

LAND  AND  LAND  OFFICE,  11-13,  15. 

PAYMENT. 

PRESCRIPTION  AND  PiiKsrsirTioN,  1,  '2. 

PAWN. 

The  redemption  of  a  pawn  is  not  affected  by  the  Statute  of  Limita- 
tions, which  runs  only  from  the  conversion  of  the  thiin;  pawned.  Hut 
a  simple  contract  debt  is  not  protected  fiom  the  statute,  because  accom- 
panied with  a  pledge  as  a  collateral  security.  //"»/</'.<  A<ii<i'r  v.  H"i7»«"/i, 
•JIG. 

PLEADING. 

AKIUTRAMKNT  AND  AWARD.  1,  '2.  EXECI'TORS  AND  ADMINISTRATOR?,  ft. 
GUARDIAN  AND  WARD,  5.  INSOLVENT.  l.S.  LF.GAIT.  1.  PRACTICE.  4. 

Hl'SBAND  AND  WlFE,  4. 


534  INDEX. 

PLEADING. 

1.  When  C.  came  of  nge,  he  refused  to  take  the  land  devised  to  him, 
and  an  agreement  was  entered  into  Iwtween  the  guardian  of  B.'s  chil- 
dren and  all  the  other  children  of  A.,  that  the  land  devised  to  C.  should 
be  sold,  and  the  money  equally  divided  between  them  ;  the  land,  in  pur- 
suance thereof,  having  been  sold  )>y  trustees  appointed  for  the  purpose 
and  the  money  in  their  hands,  it  was  held  that  a  suit  would  not  lie 
against  them  in  the  names  of  the  children  of  15.  to  recover  their  share, 
but  must  be  brought  in  the  name  of  B.'s  administrators,  there  being  debts 
of  B.'s  estate  yet  unpaid.  //t;/c  v.  Jle>/e.  S3. 

2.  Where  suit  is  brought  against  the  personal  representatives  of  a  de- 
ceased debtor,  with  notice  to  the  tenants  in  possession  of  the  land  upon 
which  the  debt  is  alleged  to  l>e  a  lien,  and  the  tenants  appear  and  make 
defence,  they  are  concluded  by  the  verdict  and  judgment ;  although  they 
may  not  in  fad  have  put  in  issue  the  question  of  lien  ;  and  in  an  eject- 
ment brought  by  a  sheriff's  vendee  under  that  judgment  against  such 
terre-tenants.  they  will  not  be  permitted  to  controvert  the  lien  pf  such 
debt.     II  tines  v.  Jacobs,  152. 

3.  It  is  a  rule  of  pleading  that  whatever  is  not  contested  at  the  proper 
time,  is  conceded.     Id. 

4.  Kven  where  the  terre-tenants  have  been  called  upon  prematurely, 
still,  if  they  avail   themselves  of  the  occasion,  and  have  a  fair  opportu- 
nity to  make  a  full  defence,  they  are  concluded.     Id. 

5.  In  Pennsylvania,  where  lands  are  assets  for  the  payment  of  debts  :  it 
is  most  just  to  afford  the  terre-tenant,  who  is  the  party  to  be  affected,  an 
opportunity  to  contest  the  debt,  and  the  plaintiff  may  do  so.     Id. 

15.  If  an  executor,  upon  the  settlement  of  an  account  of  his  testator, 
allows  a  credit  for  a  check  this  is  not  such  an  administration  of  this  part 
of  the  assets  as  will  preclude  an  administrator  lie  bonis  n»n,  from  sus- 
taining an  action  to  recover  the  amount  of  the  check,  which  he  proved 
to  be  a  forgery.  Hank  «f  Pennsylvania  v.  Jacobs'*  Adin'rs.  101. 

7.  A  promise  laid  in  one  count,  as  having  been  made  to  the  testator  in 
his  lifetime:  and  in  another  as  having  been  made  to  his  administrators 
after  his  death,  is  not  such  a  misjoinder  of  counts  as  will  be  fatal  to  a 
general  verdict  and  judgment.  /</. 

tf.  Wherever  the  funds  to  which  the  money  and  the  costs  are  to  be 
applied,  or  out  of  which  the  costs  are  to  be  paid,  are  the  same,  and  the 
money  when  recovered  would  be  assets,  then  the  counts  mav  be  joined. 
Id. 

9.  Where  an  original  action  was  brought   by  executors,  maliciously 
and  without  probable  cause,  in  an   action  therefor  against   them,  they 
must  be  sued  in  their  individual  capacity:  a  writ  and  declaration  calling 
them    executors    is    not    mere    description  or  surplusage,    but  is  error. 
Zearimjs  Kx'rs  v.  Il>a*hnri>,  232. 

10.  Where  an  award  had  been  made  against  the  defendants,  and  by 
agreement  they  were  let  into  a  defence    on   tlie  merits,  without  being 
in  am/  dcijrte  prejudiced  by  the  award,  in  their  defence,  they  are  not  pre- 
cluded by  the  agreement  from  putting  in  the  plea  of  iton  estjartum,  and 
availing  themselves  of  the  fact  that  the  instrument  declared  on  was  exe- 
cuted but  by  one  of  a  iirm  only.     Hart  v.   Withers.  2S">. 

11.  But  if  such  agreement  had  that  effect,  it  would  be  waived  by  tak- 
ing issue  on  the  plea  of  non  e.ft  factiiw,  instead  of  moving  to  have  it 
struck  out.      /'/. 

12.  When  suit  is  brought  against  several  partners  upon  a  sealed  instru 
m^nt,  executed  by  one  for  all.  the  plaintiff  cannot  recover  against  the 
partner  who  actually  executed  the  instrument  alone.     Id. 

13.  A  plaintiff  who  states  his  case  more  particularly  than  is  necessary, 
is  not  bound  to  the  strict  proof  of  circumstances,  merely  because  they 
have  been  unnecessarily  set  out.     Sidwtll  v.  Evans,  383. 

14.  A  special  plea  that  a  domestic  attachment,   grounded  upon  the 


INDEX.  .035 

PLEADING. 

same  cause  of  action,  had  issued  in  another  county,  and  is  yet  pending, 
is  a  pica  in  abatement,  and  cannot  be  put  in  after  i.ssue  joined  upon  a 
pica  in  bar.  Eitylv  v.  Kelson,  44± 

1 "».  The  rule  is  different  us  regards  a  popular  action  ;  there  the  pen- 
dency of  a  prior  action  extinguishes  the  title  of  every  one  else,  and 
necessarily  bars  the  right.  Id. 

Iti.  A  trial  upon  the  plea  of  payment,  is  not  a  waiver  by  the  defendant 
of. a  joinder  in  demurrer  to  another  pica  put  in  by  him  :  thus  when  there 
is  a  joinder  in  demurrer,  and  the  defendant  is  legally  entitled  to  a  judg- 
ment thereon  in  his  favor,  but  the  cause  being  tried,  upon  the  plea  of 
payment,  and  a  verdict  rendered  for  the  plaintiff,  it  is  error  for  the  court 
to  enter  a  judgment  upon  that  verdict.  \Villard  v.  Morris,  4.SU. 

POSSESSION'. 

EJECTMENT,  '1.     LIMITATIONS,  1. 

PRACTICE. 

*B.\iL,  1,  '2.  CIRCUIT  COURT.  1,  2,  '.},  4,  ."),  o.  EQUITV,  1.  ERROR.  1.  -, 
3,  4,  5,  1U.  EVIDENCE,  '2\,  '2~>,  '2(.l,  30.  INSOLVENT,  '2.  JUDGMENT,  *,  '.'. 
LEGACV,  '2.  OKI-HANS'  COURT,  4.  PLEADING.  11,  14.  17.  PRINTITAL 
AND  SCKETV,  '2.  KoADS  AND  BRIDGES.  1.  SHERIFF* S  SALE.  .*}.  1<). 

I.  When  adjudgment  is  irregularly  entered  against  a  defendant,  by 
default  of  appearance,  who  being  informed  of  it,  neglects  or  refuses  for 
two  terms,  and  until  after  a  writ  of  inquiry  of  damages  is  executed,  to 
make  an  application  to  have  the  judgment  set  aside,  it  will  not  be 
reversed  on  a  writ  of  error.  CV'/.v////  v.  Afuysey,  '2'2'J. 

'2.  The  time  and  manner  of  filing  narr.,  of  appearing,  pleading  and 
signing  judgment  for  want  of  plea,  &c.,  are  matters  of  practice  regulated 
by  rules  of  court:  and  anv  one  complaining  of  irregularity  therein,  must 
apply  for  redress  as  soon  as  he  kno'.vs  of  the  injury.  /</. 

'•>.  Generally,  if  a  party  goes  to  trial  bv  con-ent  in  a  lower  court,  at  an 
earlier  term  than  IK;  was  compellable  to  do,  if  he  make  no  objection  then, 
his  objection  will  not  avail  him  afterwards,  /ivi/, •/»•/>•'.•*  .-l/iy/n//,  '.','2'2 

4.  Whether  a  particular  cause  of  action  be  proper  for  </  .«t<ileimnt.  or 
whether  the  statement  contains  any  cause  of  action,  or  whether  a  valid 
consideration  be  laid,  are  points  that  might  be  mooted  on  a  motion  in 
arrest  of  judgment  :  but  they  are  matters  with  which  the  jury  have 
nothing  to  do.  tfiihcetl  v.  A'w/i.?,  3S'J. 

;").  The  Court  of  Common  Pleas  may  grant  a  new  trial  upon  the  terms 
that  the  defendant  shall  pay  all  the  costs  which  have  accrued  up  to  the 
time  of  trial  ;  and  may  enforce  that  rule  by  entering  judgment  upon  the 
verdict  against  the  party  refusing  to  comply  with  it.  Decinnry  v.  Itccdrr, 
3'.l'.t. 

(').  But  if  the  plaintiff  acquiesces  in  the  non-pavinent  of  the  costs,  bv 
proceeding  to  take  testimony  on  a  commission  to  another  state,  or  pro- 
ceeds to  enforce  the  payment  of  them  by  citation  and  attachment,  h«>  can- 
not afterwards  have  judgment  by  default  of  the  pavment  of  such  co-ts. 
Id. 

7.  If  an  execution  issue  upon  a  judgment  for  a  penalty  upon  a  condi- 
tion to  pay  H  fine  and  bill  of  costs  before  the  real  amount  due  is  ascer- 
tained, it  will  be  set  aside  on  a  writ  of  error.      //«'/</<;»  v.  Hull,  4''«>. 

8.  When  an  Act  of  Assembly  requires  reasonable  notice  to  t»e  given. 
by  one  party  to  the  other,  ten  days  generally  would  be  sufficient,      ('"in- 
infinirealfh  v.  Fisher.  4t>± 

PRESCRIPTION'  AM)  PHESI'MPTIOX. 

LANDS  AND  LAND  OFFICE.  '.',  1">,  lo.     PARENT  AM>  Cim.n.  1. 

1.  The  Statute  of  Limitations  does  not  run  against  debts  due  ny  an 
insolvent  debtor.  Lapse  of  time,  much  greater  than  that  allowed  bv  tin- 
statute,  may  raise  the  presumption  of  the  pavment  of  such  debt*  :  Kiit 
when  the  debtor  returns  no  fund  hut  a  debt  to  become  due  on  a  future 


536  INDEX. 

PRESCRIPTION  AND  PRESUMPTION. 

contingency,  no  presumption  of  payment  would  arise  before  the  fund 
came  to  hand.      Frathci-s's  Appeal,  322. 

2.  A  presumption  of  satisfaction  from  lapse  of  trine,  arises  in  the  case 
of  an  administration  bond  ;  and  the  computation  runs  from  the  period 
when  the  money  was  demandablc.  Dicmer  v.  Sechrisl,  419. 

PRINCIPAL  AND  SURETY. 

1 .  The  defendant  in  a  judgment  on  a  recognisance  for  the  price  of  land, 
taken  at  a  valuation  in  the  Orphans'  Court,  gives  security  for  the  stay  of 
execution  allowed  by  the  Act  of  Assembly,  after  which  the  land  is  sold 
by  the  sheriff,  and   the  money  brought  into  court.     The  plaintiff,  and 
other  persons  entitled,  agree  that  the  debts  of  a  deceased  brother,  who 
died  in  the  lifetime  of  the  father,  should  be  paid  out  of  his  estate  as  liens, 
although   in  point   of  fact  they  were  not  liens,   and   the  proceeds  of 
sale  are  thus  exhausted,  and  not  applied  to  pay  the  judgment,  which  was 
a  lien.     Hdd,  that  the  liability  01  the  surety  on   the  recognisance  was 
discharged,  and  the  agreement  of  the  defendant  in  the  judgment  to  the 
misapplication  of  the  fund  will  not,  as  respects  the  surety,  alter  the  case. 
Finney  v.  The  Commonwealth^  240. 

2.  A  judgment  was  obtained  against  a  principal  who  gave  absolute  bail 
to  obtain  a  stay  of  execution,  after  which  the  absolute  bail  were  sued 
and  judgment  obtained  against  them.     Held,  that  one  of  two  sureties  in 
the  original  obligation,  who  paid  one-half  the  debt,  is  entitled   to  an 
assignment  of  the  judgments  against  the  principal  and  the  absolute  bail, 
to  enable  him  to  indemnify  himself  for  the  amount  thus  paid.    Burns  v. 
The  Huntingdon  Bank,  3fJ5. 

PRIORITY. 

JUDGMENTS,  3,  10. 

PRIVITY  OF  ESTATE  AND  TITLE. 
EQUITY,  2. 

PROMISSORY  NOTES. 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

PROTIIONOTARIES  AND  CLERKS  OF  COURTS. 
CIRCUIT  COURT,  2.     ERROR,  1. 

1.  The  account  of  a  prothonotary  being  settled  by  the  accountant  offi- 
cers of  the  state,  to  which  he  files  his  objections  in  writing,  and  takes  an 
appeal  to  the  Common   Pleas,  upon  the  trial  of  the  cause  he  cannot  give 
evidence  to  support  other  objections  than  those  made  at  the  time  of  ap- 
peal.    1'orter  v.  The  Commonwealth^  252. 

2.  Upon  the  settlement  of  such  account  of  a  prothonotary  out  of  office, 
the  accountant  officer  is  not  confined  to  the  settlement  of  items  embraced, 
as  to  date,  within  the  fiscal  year.     Id. 

PURCHASER. 

SHERIFF'S  SALE. 

QUARTER  SESSIONS. 

When  the  approval  of  a  Court  of  Quarter  Sessions  is  required  by  an 
Act  of  Assembly  to  an  assessment  of  damages,  that  court  will  not 
readily  set  aside  a  report,  on  the  ground  that  the  damages  are  excessive, 
yet  it  may  become  their  duty  so  to  do.  It  would  be  a  much  stronger 
case  which  would  authorize  the  Supreme  Court  to  set  aside  a  report  on 
that  ground.  Commonwealth  v.  Fisher,  402. 

RATIFICATION. 
SURVEYOR,  1. 

RECOGNISANCE. 

PRINCIPAL  AND  SURETY,  1. 


INDEX.  537 

RECOGNISANCE. 

1.  Upon  an  appeal  from  a  judgment  of  a  justice  of  the  peace  by  the 
plain tilF,  the   hail  entered   into  a  recognisance,  which  was  taken  by  the 
justice  in   these  words,  "  J.  W.   bound  in  a  sum  to   cover  all   costs," 
which  was  held  to  he  void,  and  upon  which  there  could  be  no  recovery 
on  a  scire  facias  against  the  bail.      Williamson  v.  Mitchell,  9. 

2.  In  an  action  commenced  by  capias,  a  short  minute  of  a  recognisance 
of  special  hail,  taken  by  the  clerk  of  a  prothonotary,  in  this  form,  "  R. 
M.  held  in  *20()   cvyn.  coram   E.   L.  for  J.  II.  Proth'y."     Held,  to  be 
sufficient.      Moore  v.  Mctiride'x  Adm'r,  148. 

3.  An  administration  account,  stated  and  filed  in  the  register's  office, 
is  not  a  compliance  with  a  recognisance,  conditioned  for  the  settlement 
of  an  account;  and  upon  a  suit  brought  upon  that  recognisance  by  one 
of  the   heirs  of  the  estate  which  the  administrator  represented,  he  is 
entitled  to  recover  nominal  damages,  although  the  jury  may  believe  that 
his  interest  in  the  estate  had   been  tiaid  to  him.     Commonwealth  v.  Hen- 
derson, 401. 

RECORD. 

A  trial-list  certified  under  an  Act  of  Assembly  for  holding  a  special 
court,  forms  no  part  of  the  record;  it  is  the  private  paper  of  the  judge, 
which  he  has  a  right  to  do  with  as  he  pleases,  and  the  entries  made  upon 
it  hy  him  are  intended  for  his  own  information.  Moore's  Adm'r  v. 
Kline.,  12(J. 

REGISTER'S  COURT. 
EVIDENCE,  16. 

RELEASE. 

CANALS,  4.     EXTINGUISHMENT  AND  SATISFACTION,  1,  4. 

RETRAXIT. 

ERROR,  9. 

RIVERS. 

ROADS  AND  BRIDGES. 

ROADS  AND  BRIDGES. 
CANALS. 

1.  A  practice  in  the  Court  of  Quarter  Sessions   of  appointing  tirclcc 
freeholders  as  reviewers  of  a  road,  from  which  the  parties  in  interest 
shall  strike  six,  the  remaining  six  being  the  reviewers,  is  contrary  to  the 
express  provision  of  the  law,  and  erroneous.     But  when  the  petitioners 
for  the   review   pray  for  the  appointment  of  twelve  and  then  refuse  to 
strike,  because  some  of  the  persons  appointed  are  exceptionable,  it  is  not 
error  in  the  Court  of  Quarter  Sessions  to  refuse  to  appoint  others  in  the 
place  of  those  four,  and  confirm  the  view.     Jonestown  l\<nid,  24i>. 

2.  The  right  of  the  state  to  take  and  use  for  public  purposes,  six  out 
of  every   hundred  acres  of  land  sold,  is  not  an  implied  ri^ht  but  an 
express  reservation  ;  the  state  infringes  upon   no  private  interest,  nor 
does   it  injure  any  man   by  using  this  right :  the  utmost  that  can  bo 
required  is,  that  it  should  pay  for  improvements  put  by  the  owner  on 
such   part   as   the   state   should   subsequently   use.      Commonwealth   v. 
Fisher,  4(i2. 

.'>.  All  below  high  water-mark,  in  the  channel  of  the  Susquehanna 
river,  is  a  public  highway,  and  the  state  has  a  right  to  improve  it  by 
deepening  it,  or  it  may  raise  dams  in  it,  and  thus  swell  the  water  :  and 
if  in  so  doing,  a  spring  which  rises  below  high  water-mark  is  covered, 
and  which  an  individual  has  been  accustomed  to  use,  he  cannot  recover 
damages  therefor,  under  the  Act  of  l.'th  April,  1S27;  it  is  dmnnnin 
atiKqtte  injuria.  Id. 

SALE  BY  ORDKK  OF  ORPHANS'  COURT. 
INTESTATE  AND  DECEDENT,  1. 


538  INDEX. 

SATISFACTION. 

EXTINGUISHMENT  AND  SATISFACTION. 

SOIRE  FACIAS. 

JUDGMENT,  1,  2,  G.     RECOGNISANCE,  1.     TERRE-TENANTS,  1. 

SERVANTS  AND  SLAVES. 

"Yeoman"  is  a  sufficient  designation  of  the  occupation  of  the  owner 
of  a  slave,  under  the  Act  of  1780.  Cohean  v.  Thompson,  93. 

SHERIFF. 

EVIDENCE,  33.     INSOLVENT,  8. 

1.  The  neglect  or  refusal  of  a  sheriff  to  commit  a  person  convicted  of 
fornication  until  the  sentence  should  be  complied  with,  according  to  the 
decree  of  the  court,  makes  him   liable   upon   his  official   bond,  to  the 
mother  of  the  child,  for  the  amount  which  the  person  convicted  was 
sentenced  to  pay  to  her  for  its  maintenance.     Xnyder  v.  Commonwealth, 
94. 

2.  The  deliver]/  of  the  land  under  a  liberari  facias  is  the  executive  duty 
of  the  sheriff  alone.     Meredith  v.  Shcicall,  495. 

SHERIFF'S  DEED. 

The  recital  in  a  sheriff's  deed,  that  the  sale  was  made  on  n  certain 
day,  does  not  estop  the  grantee  from  showing  by  parol  that  it  was  made 
on  a  prior  day.  Hall  v.  Benner,  4U2. 

SHERIFF'S  SALE. 

ASSIGNEE,  1,  2.  INTESTATE  AND  DECEDENT,  7.  JUDGMENT,  5,  6.  EX- 
TINGUISHMENT AND  SATISFACTION,  3. 

1.  When  land  is  sold  upon  a  judgment,  the  sheriff  must  appropriate 
the  money  arising  from   the  sale   to  existing  liens,  according  to   their 
priority,  and  convey  to  the  purchaser  a  title  free  from  encumbrances. 
McGrcw  v.  MclMtiahan,  44. 

2.  When  a  judgment  is  obtained  upon  one  of  several  bonds  which 
were  secured  by  a  mortgage,   and  an  execution  issued   thereon,   upon 
which  the  mortgaged   premises  are   levied,  and  afterwards  sold  upon  a 
rendition!  exponas,  before  the  mortgage  is  due,  the  purchaser  takes  the 
land  discharged  of  the  lien  of  the  inortgage.     Id. 

3.  Judicial  sales  of  land,  divests  all  liens,  whether  general  or  specific. 
Me  Luna/tan's  Kx'rs  v.  McLanahari's  Adm'rs,  9f>. 

4.  When  a  legacy  is  charged  upon  land,  the  sheriff's  ycndee  takes  the 
land,  discharged  from  the  lien  of  the  legacy.     Id. 

5.  A  decree  which  does  not  dispose  of  the  whole  fund  for  distribution, 
under   the    Act   of  Assembly  "relative   to    the   distribution    of  money 
arising  from  sheriffs'  and  coroners'  sales,''  is  not  a  final  decree,  and  an 
appeal  taken  from  such  decree  will  be  (jiiushcd.     Itoyer  v.  Tafe,  227. 

0.  A  purchaser  at  sheriff's  sale  before  the  deed  is  acknowledged,  has 
not  such  a  title  to  the  land  struck  down  to  him,  as  will  authorize  him  to 
give  a  lease  of  the  premises.  Hall  v.  Benner,  402. 

7.  Whether  a  water-right  and  tilt-hammer  are  appurtenances  to  land, 
and  will  pass  by  a  sheriff's  sale  made  by  virtue  of  a  judgment  upon  a 
mortgage  of  the  land,  depends  upon  the  facts  of  the  case,  and  must  be 
submitted  as  a  matter  of  fact  to  the  jury.  Id. 

H.  If  the  court  should  decide  from  inspection  of  the  papers,  that  such 
a  right  would  pass  as  an  appurtenant,  it  would  be  error.  Id. 

'J.  A  sale  of  real  estate  by  the  sheriff,  upon  a  junior  judgment,  divests 
the  lien  of  a  prior  mortgage  upon  the  same  land.  Willard  v.  Morris, 
480. 

10  Upon  an  appeal  from  the  decree  of  the  Court  of  Common  Pleas, 
distributing  the  proceeds  of  real  estate  sold  by  the  sheriff,  the  affidavit 
must  be  made  by  the  party:  it  is  insufficient  if  made  by  the  attorney. 
S(einl>ri<lrje'.i  Appeal,  481. 


INDEX.  539 

SLANDER. 

Words  which  impute  an  offence  against  morality,  are  not  actionable, 
unless  the  offence  be  indictable,  or  induce  some  legal  disability.  There- 
fore to  say,  "  J.  H.  swore  a  lie  before  the  sessions,  and  I  can  prove  it  by 
twenty  witnesses,"  is  not  actionable.  Harvey  \.  Boies,  12. 

SUPREME  COURT. 

QUARTER  SESSIONS. 

SURETY. 

PRINCIPAL  AND  SURETV. 

SURVEY. 

EJECTMENT,  1 :  LANDS  AND  LAND  OFFICE,  1,  4,  5.  7.  8,  9:  SURVEYOR,  1. 

SURVEYOR. 

1.  When  it  can  be  proved  or  is  admitted  that  a  man  acted  as  an  assist- 
ant-surveyor, it  is  not  requisite  to  show  a  special  authority,     tiniay  v. 
Smith's  Ex' /•.?,  I. 

2.  (General   reputation   that  a  person  was  employed  as  such,  or  proof 
that  many  drafts  or  field  notes  remaining  in  the  surveyor's  office  are  in 
his  handwriting,  are  evidence  that  he  was  an  assistant.     Id. 

'.'>.  The  return  by  a  deputy-surveyor  of  a  survey  made  by  another,  is  :v 
ratification  of  it,  and  it  is  immaterial  whether  there  was  a  precedent 
authority  to  make  it  or  not.  Id. 

SUQUEIIAXNA  RIVER. 

ROADS  AND  BRIDGES,  3. 

TAXES. 

1 .  A  purchaser  of  unseated  lands,  sold  for  the  payment  of  a  direct  tax, 
in  pursuance  of  the  Act  of  Congress,  and  having  in  his  possession  a 
deed  from  the  collector,  who  was  authorized  to  make  the  sale,  has  such 
a  ri:_rht  as  will  authorize  him  to  redeem  the  same  lands,  from  a  person 
who  had  purchased  them  at  a  treasurer's  sale,  for  taxes,  made  in  pursu- 
ance of  the  Act  of  Assembly.  Mfllri>le\.  ll»ey,  ;">4. 

'2.  The  treasurers  of  the  respective  counties,  are  the  proper  persons  to 
make  sale  of  unseated  lands  to  pay  the  arrearages  of  taxes,  and  the  Act 
of  the  Kith  March,  IS  1"),  which  gives  them  this  authority,  alters  and  sup- 
plies so  much  of  the  Act  of  the  3d  of  April,  as  required  a  warrant  from 
the  commissioners  of  the  conntv,  to  issue  to  the  sheriff  or  coroner,  in 
case  of  a  sale  as  aforesaid.  McCoy  v.  Turk,  49'J. 

TERRE-TENANTS. 

PLEADING,  2,  4,  5. 

It  is  competent  for  a  terre-tenant,  who  is  brought  in  by  seire  facia* 
to  revive  a  judgment  to  show  that  the  original  judgment  was  entered 
without  authority,  was  fraudulent,  or  otherwise  wholly  irregular.  £7nVA 
v.  I'vncida,  245. 

TIME. 

3.  When  a  judgment  in  ejectment  was  entered  by  agreement  of  the  par- 
ties, to  be  released  on  the  payment  of  a  certain  sum,  on  or  before  a  certain 
day,  fiin>'  is  of  the  essence  of  the  contract,  and  if  the  money  be  not  paid 
on  or  before  the  day,  the  judgment  becomes  absolute  and  indefeasible. 
Gallic  v.  llain,  2i)4". 

TITLE  TO  LANDS. 

EJECTMENT,  '2 ;  EQUITY.  2:  FRAUDS  AND  PERJURIES,  1  ;  LANDLORD  AND 
TENANT.  1.  2;  LIMITATIONS,  2;  SHERIFF'S  SALE.  t'i. 

TREASrilER'S  SALE. 

T  A  X  KS. 

TRIAL. 

NEW  TRIAL;  PLEADING.  17:   PRACTICE,  3. 


540  INDEX. 

TRUSTEE. 

TRUSTS. 

TRUSTS. 

EVIDENCE,  12,  20;  INSOLVENT,  1. 

1.  A  gift  to  a  charity  shall  not  fail  for  the  want  of  a  trustee,  but  vest 
as  soon  as  the  charity  has  acquired  a  capacity  to  take.    McGirrv.  Aaron. 
49. 

2.  Devise — "  I  give  and  bequeath  all  my  real  estate,  to  wit.   &c.,  to  a 
Roman   Catholic  priest,  that  shall   succeed  me  in  this  said  place,  to  be 
entailed  to  him   and  to  his  successors,  in  trust  and  for  the  use   herein 
mentioned,  in  succession,  forever,  Jtc.,  &c.,  and  further,  it  is  my  will,  that 
the  priest,  for  the  time  being,  shall  transmit  the  land  so  left  him  as  afore- 
said, to  his  successor,  clear  of  all  encumbrances,"  &c.     Held,  that  the 
devise  was  for  the  maintenance  of  a  priest,  but  in  ease  of  the  congrega- 
tion, and  for  its  benefit  alone  ;  and  the  congregation  is  entitled  to  take 
the  profits  in  the  first  instance,  but  subject  to  a  right  in  the  priest  to  have 
them  applied  to  his  support.     Id. 

3.  There  is  no  case  where  trustees  have  acted  with  good  faith,  and 
under  the  advice  of  counsel,  in  which  they  have  been  held  responsible. 
Kinij  v.  Morrison's,  Adm'r,  188. 

4.  Common  skill,  common  prudence,  and  common  caution,  are  all  that 
courts  require  from  trustees.     Konigmacher  v.  Kimmel,  207. 

5.  If  a  trustee  pay  a  judgment  against  the  debtor  out  of  the  trust  fund 
it  is  as  much  satisfied  as  if  the  debtor  had  paid  it,  and  there  is  no  legal 
or  equitable  reason  for  keeping  it  in  force.     Keller  v.  I^cib,  2'20. 

6.  The  trustee  cannot,  by  taking  an  assignment  of  it,  when  it  is  paid, 
make  it  available  against  the  lands  of  the  debtor,  conveyed  after  it  was 
entered,  either  for  a  good  or  valuable  consideration,  nor  can  it  be  made 
to  cover  any  other  debt  or  demand.     Id. 

1.    Qucure.     Whether  such  trustee  can  proceed  on  a  judgment  against 
the  debtor  (purchased  with  his  own  funds),  by  execution.     Id. 

TURNPIKE  AND  TURNPIKE  COMPANIES. 
CORPORATION,  1,  2,  3. 

UNSEATED  LANDS. 
TAXES. 

VENDOR  AND  VENDEE. 

BARGAIN  AND  SALE,  1;  DEED;  EXTINGUISHMENT  AND  SATISFACTION,  3; 
FRAUDS  AND  PERJURIES,  1,  3. 

1.  The  purchase-money  due  the  Commonwealth,  is  an  encumbrance 
which  may  be  set  up  as  a  defence  to  the  payment  of  bonds  given  for  Land, 
which  the  grantor  covenanted  to  convey  clear  of  encumbrances.     .Vc- 
Kennan  v.  Doughman,  417. 

2.  Bv  a  sale,  conveyance  and  delivery  of  possession  of  land,  the  grain 
growing  thereon  does  not  pass  to  the  vendee.     Smith  v.  Johnston,  471. 

VERDICT. 
EQUITY. 

WARRANT. 

LANDS  AND  LAND  OFFICE,  1,  3. 

WAY-GOING  CROP. 

1.  Where  a  lease  is  made  for  the  term  of  a  year,  and  the  tenant  sows 
the  land  with  spring  grain  before  his  term  expires,  he  has  no  right  to  the 
crop  of  spring  grain  cut  after  the  term  is  out:    and  this  whether  the 
lease  be  for  money,  rent,  or  »n  th?.  shares,     Drmi  v.  Jfos.vlcr,  224. 

2.  The  custom  in  Pennsylvania,  as  to  the  way-going  crop,  is  confined 
to  fall  srrain,  sowed  in  the  autumn,  before   the  expiration   of  the  lease, 
and  cut  in  the  summer  after  it  determines.     Id. 


INDEX.  541 

WILLS. 

EVIDENCE,  18  ;  EXTINGUISHMENT  AND  SATISFACTION.  4  ;  INTESTATE  AND 
DECEDENT,  I  ;  LEGACY. 

1.  T.  B.  In  his  last  will  made  the  following  devise — ''I  give  and  be- 
queath all  my  real  estate  to  wit,  ic..  to  a  Roman  Catholic  priest,  that 
shall  .succeed  me  in  this  said  place,  to  be  entailed  to  him  ami  to  his  suc- 
cessors, in  trust,  and  for  the  use  herein  mentioned,  in  succession,  forever, 
&c.,  &c.,  and  further,  it  is  my  will,  that  the  priest  for  the  time  being, 
shall  transmit  the  land  so  left  him  as  aforesaid,  to  his  successor,  clear 
of  all  encumbrances  as  aforesaid,"  &c.  JJeld,  that  the  devise  was  for 
the  maintenance  of  a  priest,  but  in  ease  of  the  congregation,  and  for  its 
benefit  alone  And  the  congregation  is  entitled  to  take  the  profits  in  the 
first  instance,  but  subject  to  a  right  in  the  priest,  to  have  them  applied  to 
his  support.  Me.  Gin-  \.  Aaron,  49. 

'2.  C.  0.  made  his  will  in  1798,  and  died  soon  after,  seis'-d,  as  he  sup- 
posed of  a  large  real  estate.  By  his  will,  after  disposing  of  his  personal 
estate,  he  directed  that  his  land  should  be  occupied  in  a  certain  man- 
ner for  three  years,  then  valued  by  twelve  men,  and  his  son  John  have 
the  right  to  take  it  at  the  appraisement;  if  he  refused,  the  other  children 
in  succession  to  have  the  right;  if  none  agreed  to  take  it,  it  was  to  be 
sold  by  the  executors,  and  in  either  event  the  money  divided  among  his 
heirs.  "  But  the  sum  of  40W.  is  to  be  charged  on  the  said  estate,  and 
remain  in  the  hands  of  the  purchaser."  The  interest  on  this  sum  he 
directed  to  be  paid  to  his  wife,  and  at  her  death  this  sum  to  be 
divided  among  his  three  eldest  children  or  their  heirs  ;  "and  as  touch- 
ing the  money  arising  from  my  land  and  estate.  I  give  anil  be- 
queaUi  to  my  son  J.  0.  Jirst  and  foremost,  1(MM)/.,  because  he  is 
my  only  son,  along  with  his  share  which  he  shall  have  with  my  other 
children."  His  personal  estate  was  exhausted,  and  his  real  estate 
sold  on  execution  within  two  years  after  his  death  ;  a  balance  of  4<H)/.  in 
IHUl  was  decreed  to  be  put  to  interest,  and  the  interest  paid  the  widow. 
Widow  died  in  18(W,  and  in  1814  a  scire  facias  was  issued  upon  the  judg- 
ment given  to  secure  the  4UO/.,  in  which  a  verdict  was  rendered  in  I82b, 
and  the  proceeds  brought  into  the  Orphans'  Court  for  distribution  in 
1828.  Held,  that  J.  0.  was  not  entitled  to  be  paid  out  of  this  fund  his 
legacy  of  1UUO/.  :  but  that  he  took,  as  to  this  an  equal  share,  as  one  of 
the  "three  oldest  children'1  of  the  testator,  that  his  interest  in  the  fund 
was  personal,  not  real  estate,  and  n  judgment  against  him  no  lien  on  it. 
Feathers' s  Appeal,  .S22. 

WITNESS. 

EVIDENCED,  7,  8,  9,  10.  11,  124. 

1.  In  a  suit  brought  by  the  administrators  of  a  deceased's  estate,  to 
recover  the  purchase-money  of  land   sold  by  them  in  pursuance  of  an 
order  of  the;  Orphans'  Court,  onp  of  the  heirs  of  that  estate,  who  hail  at 
the  bar,  upon  the  trial  of  the  cause,  released  all  his  interest  in  the  estate 
to  another  of  the  heirs,  is  a  competent  witness  for  the  plaintiffs.      (.'<•£ 
v.  Norton,  412. 

2.  An  attorney-in-fact  is  a  competent  witness  to  prove  that  a  settle- 
ment made  with  him  for  his  principal,  upon  which  he  executed  a  release 
to  the  party,  was  obtained  by  a  misrepresentation  of  the  truth.      Iririn's 
Ail  in  r  v.  Allen,  444. 

3.  The  sheriff  is  a  competent  witness  to  prove  the  words  "  proceedings 
stayed  by  plaintiff's  attorney."  which  had  been  endorsed  on  n  writ  of 
liberari   facias,  and  signed   by  the  sheriff  and  which  were  struck  out  or 
erased  by  a  line  run  through  them,  though  still  legible,  were  his  return 
to  that  writ,  and  that  he  had  not  struck  them  out.     McrtJU/i  v.  .S/uiru//, 
495. 

WORDS. 

SLANDER. 

END  OF  VOL.  I. 


)  vv»- 
UNIVEF: 

LOS  ANGELi- 


